It was nearly seven years ago that I read GW lawprof Dan Solove’s book, The Future of Reputation. After doing so, I sat down with my kids and had a nice talk about doing stupid things on the internet, and how that could come back to bite them in the butt later.
The upshot was to teach them to think ahead, to understand the potential unintended consequences of doing something that might seem cool or fun at the moment, but could have dire consequences later. The point was to protect their reputation in the future, despite whatever they felt like doing today.
As I read a BBC post promoting the revenge porn advocates’ efforts to get criminal laws enacted, a quote by a baby lawyer from Brooklyn was quite disconcerting:
Carrie Goldberg, who is based in Brooklyn, said she has been overwhelmed by the number of victims asking for help since she started her practice in January 2014.
“The response was immediate and unexpected,” she said.
“I’m getting calls daily from victims. Their ages range from as young as 13 to as old as 40.”
She added: “Sexting images is not exceptional behaviour anymore. It’s really, really common to take and send sexual images and it means more people are going to need protection from the law.”
She was likely too young to have read Dan’s book, but the ideas shouldn’t be foreign to any reasonably intelligent person. Rather than trying to help people to protect themselves from the harm of revenge porn, she was rationalizing sexting for 13-year-olds!
While I doubt greatly that it’s “really, really common,” for 13-year-olds to send nude images of themselves to others, this was one of the most irresponsible assertions imaginable. If she cared about “victims,” then she should be advocating for people not to engage in this behavior. Instead, she proclaimed it unexceptional, as if there is some moral imperative for people to send nude pictures of themselves to others.
In almost every discussion of revenge porn, someone will raise the point that if people didn’t send nude images to others, then they wouldn’t exist to be posted on the internet. This response has been castigated as “victim blaming,” a phrase that became prominent in rape cases where the rape victim was blamed for wearing clothing or behaving in a way that some saw as inviting sexual interest and thus explaining, if not justifying, subsequent unwanted conduct.
While the phrase still applies, the analogy doesn’t apply quite the same. Sending an intimate image to a person with whom an intimate relationship exists does not invite that person to use the image to harm the sender when the relationship ends. These are two entirely distinct acts, and the former neither causes nor justifies the latter.
Yet, by sending a naked pic, one creates an opportunity for harm that the victim of rape does not. This point was made in a post at The Spectator, that by making the choice to engage in a behavior that exposes someone to harm, one is exposed to harm.
I know I know, I’m being a prude. Filming yourselves having sex is just a really bloody normal and sexy thing for consenting adults to do now, like using dildos or wearing bondage gear. Get real man. The bad thing is not the act, but the publication of the material without consent — the breach of trust and so on.
More and more, we expect some official agency to restore our dignity by punishing those who humiliate us. But if you have allowed some creepy bloke (or girl) to turn you into an unwilling porn star, you probably deserve a fair share of the blame.
This post was swiftly branded “victim blaming” by the anti-revenge porn advocates. and while its language is coarse, its point is that if you don’t want to be the victim of revenge porn, protect yourself from the possibility of it happening.
Aside: While the Spectator post addresses the issue through a degree of humor, the self-righteous advocates not only find it unfunny, which is fine, but further use it as if it’s intended to be taken literally rather than as humorous. Another grave failure of credibility, that they deny to their detriment.
One might think that those engaged in advocating for criminal laws against posting naked images on the internet would also be advocating for people to use better judgment, to stop creating the weapon to be used against them. Instead, it’s just the opposite, arguing that it’s perfectly normal for 13-year-olds to send naked pictures of themselves to others. It’s nuts.
While they will no doubt claim this is “victim blaming,” as dissembling and attacking anyone who doesn’t support their quest to criminalize their enemies and any collateral casualties who are unfortunately in their way, it’s not.
This is victim proofing. This is warning people not to engage in conduct that lends itself to becoming the victim of revenge porn. This is Dan Solove’s warning seven years ago, that anything that can be posted on the internet will be posted on the internet, and that we need to get our heads out of our collective backsides and think before doing something that will come back to harm our reputations in the future.
The fact that those advocating for a new crime to stop revenge porn do not simultaneously advocate against sexting, and all the other variations of conduct that give rise to the harm they so zealously attack, reflects a hypocrisy that undermines their position. No, there is no cultural need to send intimate images. No, it is not “normal” for 13-year-olds to sext naked pictures. No, there is no compelling need to engage in conduct that lends itself to the harm about which you so fiercely complain that it’s worth sending people to prison.
Don’t send others nude images. Don’t let others take nude images of you. Protect yourself from the potential for harm. This isn’t to blame you for doing something foolish, but an ounce of prevention is worth a pound of cure. And as long as the anti-revenge porn advocates continue to promote the normalcy of engaging in risky and foolish conduct, they are irresponsible hypocrites. They are part of the problem, and deserve to be blamed.
Update: Is this plain hypocrisy or something more malevolent? The answer, just like the error, is that these things are not mutually exclusive.
Yes, it is the sexting, as well as the exploitation, and when you cry to criminalize the outcome, remember that you could have done something to save a person from the harm and didn’t.
This will not, this will not, this will not, this will not!
This will not.
You were thirteen exactly how many years ago?
Fuck, live, and learn naked.
In pre-automobile times one didn’t need to think much about looking both ways before crossing the road. In pre-internet times one didn’t need to think so hard about the wisdom of youthful shenanigans involving those newfangled Polaroid-Land cameras (with the lens that you had to pull out on a bellows and the stick of goop you had to rub on the developed picture to fix it). (Yeah, it’s been a few years since I was 13, too.) New technology = new things to bite you in the butt — hard — if you don’t learn proper precautions.
I suspect this is an offshoot of slackoisie entitlement, that they are entitled to do whatever they want to do without any thought of consequences, and if bad things happen because someone else similarly feels entitled to whatever they want to do, then there must be a law to make the other people criminals.
Ironically, those who indulge in this absurd line of rectitude see no problem with it, because they are good and anyone who disagrees is evil. Problem solved.
Makes sense to me, since it would also apply to the criminalizing of any driver behavior that may result in an unfortunate outcome. If we punish texting while driving even when no harm has occurred, perhaps we can punish receipt of a sext (if that’s the right term for the results of “sexting”) before the recipient has a chance to turn it into revenge porn! A clear Incipient Evil just begs for preventative measures. Why are we only worrying about the Actual Evil produced by the revenge pornographers?
Don’t send others nude images. Don’t let others take nude images of you. Protect yourself from the potential for harm.
And don’t walk into dark alleys at night.
It might be legal. You might have every right to be there. But it is still dumb.
I think that if Franks et al. conceded that this was a stupid thing to do and cautioned not to do it, it would feed the view that the victims were to blame and they wouldn’t get support for their revenge porn laws.
That’s probably correct, though I don’t see how it is necessary for them to argue that it’s perfectly normal and commonplace to send nude selfies. But it reflects a choice they’ve made, that it’s more important for them to promote criminalization than promote prevention for their victims.
In other words, maybe they don’t care nearly as much about helping their “victims” as promoting their criminal law, and if one has to go, it’s the safety of victims before they engage in foolish conduct.
I’m not sure if you are suggesting that sexting (which I’ll use as a catch-all term here) is essentially a unique phenomenon with different rules governing it, but I don’t think so. You suggest that when one creates the circumstances which allow to be victimized, one is at least partially to blame. This seems to boil down to a principle of, “Don’t trust people, because people may take advantage of your trust, and then it’s at least partially your fault for being foolish enough to trust someone else.” After all, we place ourselves in vulnerable positions in relation to others all the time, which allows us to be victimized. I’m not sure no-trust is a plausible moral *or* prudential imperative, as it seems to expect people to live rather unattached lives. (If you don’t think your post implies no-trust, I’m curious where you draw the line.)
There are any number of areas where we culturally encourage people to take (calculated) risks of trust, and consider the blame for the violation of trust to lie primarily with the violator. Presumably there is a spectrum: someone who sexts a partner they’ve just met is being foolish (which does not excuse the violation) in the same way that (for example) someone who trusts that his one-night stand really is on BC is foolish (which does not excuse the lie). But as we shift into longer relationships, we start (I think) to consider the risk more reasonable: we all have to count on the trustworthiness of other people to live happy and fulfilling lives, and we recognize that. I would consider it absurd to scold a man for trusting that his long-term girlfriend was telling the truth about her BC and, similarly, I consider it absurd to scold people who trusted their long-term partners with nude images of themselves.
As far as revenge porn laws, they “feel” right to me but I have seen enough criticism of them that I’m for now I’m inclined to oppose them (until someone writes a law which avoids the typical pitfalls, anyhow).
No, I expressly say that I do not blame the victim. I think Turk’s analogy makes the point quite well. Go into a dark alley at night and get mugged, and it’s the mugger, not the muggee, who is to blame. That doesn’t mean the muggee, who was lawfully entitled to be in that dark alley at night, wasn’t foolish. There are many things we do, and are entitled to do, which discretion suggests we would be wise not to do. Sending nude images is one of them.
No more nor less than anything else we do out of trust. Loan a long time friend money and maybe get paid back. Maybe not. Ask a long time friend to keep a secret, and maybe he does, maybe not. We make calculated risks, as you say, and sometimes our calculations are wrong. If you don’t want to lose money, don’t lend. It’s still solely the borrower’s fault for not repaying the loan, but you’re still out the money.
So is sending a nude image worth it? That’s up to the individual, I suppose, but the surest way to protect oneself (not be blamed, but protect) is to just not do it. If the relationship is as secure and trusting as you think, then the person who doesn’t get the nude image will survive without it.
this reminds me of one (of the very few) things i remember from drivers ed. on the first day of class the teacher spent the whole day pounding a simple phrase into our heads:
You can be legally right AND legally dead. think defensively
while yes i know driving and sexting are different topics, i have always remembered that piece of advice and found as i have gotten older that it applies to so many situations outside of driving and not just ones where you end up dead.
An excellent piece of advice.
I suppose the reason I take issue is your suggestion that it’s hypocritical to push for anti-revenge porn laws without reminding people that sexting is “risky and foolish”. It strikes me as placing the emphasis in the wrong place. Reminding your kids that sexting is risky and (probably) foolish? Sure. But expecting that every conversation about revenge porn include parental advice to cease sexting immediately? Seems odd, just as it would be odd for every conversation about rape laws to include finger-wagging about drinking too much. This is particularly true because I think that, like it or not, sexting is normal now (for those adults who have been single in the last 5-10 years, probably). One needn’t celebrate tween sexuality to recognize that this *is* what is happening. Sure, there’s no moral imperative to do this, but it *is* normal.
And this is the difference between the driving analogy and this one: you’re fairly unlikely to end up screwed by sexting without some sort of malice, but it’s very easy to screw up driving without malice. The dangers of driving would still exist and would still be extremely prevalent even if we magically got every malicious driver off the road. That doesn’t seem to be the case with sexting. There might be occasional whoopsies (“I meant to send that to my boyfriend Charles, not my dad Chuck!”), but the overwhelming problem here is malicious decisions, not human error.
That’s neither what I say nor what I suggest. There is zero being said now about people protecting themselves. If the revenge porn crusaders want to prevent more people from becoming victims, then they should advocate for being smarter, not just for criminalizing after the fact. So your “every conversation” reduces it to the absurd. How about once in a while? How about ever?
Instead, there is a affirmative push to claim (as you do) that this is just normal, everyday stuff, and no reason not to do it just like everybody else. Everybody else isn’t doing it. The McAfee survey provides:
And this doesn’t mean 50% of all people, but rather 50% of self-selected respondents, so that the percentage of the population is far less. So no, not everybody is sexting by a long shot, and this is not normal.
Yet, if it was normal, it would still be foolish. What makes that so is the arguments of the revenge porn crusaders. If the consequences are so horrible and tragic, then it’s foolish to put oneself into a position to be harmed in this way. I hate to say this, but remember when mom asked if everybody else jumped off the roof, would you? A lot of people doing something stupid doesn’t mean that what they’re doing isn’t stupid.
The one quibble i have is that there seems to be an implicit assumption that the victims sent the material to others. In many cases, that didn’t happen. Supposedly private and protected Photobucket accounts were breached b/c of a vulnerability they really dragged their feet fixing. Ditto for pics found on lost phones or phones of drunken/incapacitated people. The spirit of the advice still holds – don’t take the pics in the first place but if you must, take some really stringent precautions to safeguard them
There are no doubt a great many ways in which nude images get into the hands of others. Some are given voluntarily, and some may be stolen, hacked, “found on lost phones,” etc. Some may be taken sober. Some may be taken dead drunk. Some may be taken surreptitiously, while others openly. As you note, this changes nothing as to the advice, so in what conceivable way does your comment change anything other than to waste space and muddy the waters for any reader who doesn’t realize that you’ve said absolutely nothing useful?
This is excellent advice, I’m sure all of your readers who are sexually active 13 year olds have reconsidered their ways.
I’m sure they have as well. So, too, their parents, and maybe even the crusaders who are promoting the normalization of distributing nude images. The advice wasn’t really directed to children, but to those who can prevent them from doing something foolish.
One day, when you grow up, I hope you will remember this post so you can tell your children to protect themselves. Until then, I leave you with this bit of advice: when you write snarky comments on the interwebz that you think will show the world how brilliant you are, you should run them past a grown up first to determine whether they do the trick you think they do or make you look like a blithering moron. It’s not much better to post comments that could live in perpetuity making you look like a blithering moron than it is to share nude images of yourself. And please, never share nude images of yourself. Please.
Just because you think and write like an eighth grader doesn’t mean they look to you for guidance. To whom are you directing the advice, “Don’t send others nude images. Don’t let others take nude images of you?” The other guy who responded to me is named “Sgt. Schultz.” Think that’s a minor? I think it’s someone who remembers Neil Armstrong landing on the moon. The youngest reader here probably cast their first vote for Al Gore.
Good one, Max.
Did someone pass a rule when I wasn’t looking that prevents 30-something Algoreans from doing foolish things? (As if they haven’t already proven their propensity for foolishness just by being Algoreans.) Even 30-somethings that have the good taste to read Mr. J’s musings? Does something prevent older readers from having a stash of evidence of their youthful indiscretions that it might be well for them to reconsider keeping? Even if that evidence is from a camera that was obsolete before Armstrong got out of short pants?
Don’t harsh Max’s snark. He thinks because I mentioned 13-year-olds, it’s expressio unius est exclusio alterius, so the advice didn’t apply to anyone 14 and up, etc., and he could catch me in my oldness. And he wouldn’t have ragged on Al Gore if he could only remember the Republican he ran against, but he was so very young when America elected Shrub.
“Mooooommmmmmy! You told me I was special and the grownups aren’t being nice to me.”
You think I can remember Neil Armstrong landing on the moon? You clueless kid, haven’t you ever heard of senile dementia? I can barely remember last Tuesday. But I’ve forgotten more about the law than you will ever know.
Ignore SHG. You need to comment more. And nude selfies. Definitely nude selfies, because that would be so cool. You are over 18, right?
I hope he does, and you have to live with yourself afterward.
I’m on board with the premise of “protect yourself, don’t do stupid things even if its legal.” I think it’s even valid in the case of sexual assault – for damn sure I will explaining to my daughter that it is a very stupid thing to take unending drinks from a guy you just met at the college bar to the point where you black out and head back to his place. Does that mean I would blame her for an assault that occurred as a result? Absolutely not!
But continuing that theme, I have a bit of a problem with the notion that anti-revenge-porn laws are unnecessary or advocacy for them is hypocritical if you fail to advocate for self-protection. We have all kinds of laws that protect people from the consequences of their foolishness already, and they are quite reasonable – I don’t see anyone advocating the elimination of prohibitions on assaults, homicides, and sexual assaults, yet all three of those can have victim foolishness among the contributing OPPORTUNITY (not reason) for the crime to occur.
We often say that laws need to adapt for the Internet – and that is just as true in this case as every other. In the not-distant past, if someone snapped a nude picture of themselves or someone else, the worst possible outcome was that a few hundred people might see it over a year or more by virtue of someone with a photocopier and too much time on their hands. In the day of the Internet, the worst possible outcome of someone taking a photo with or without consent is that it could be seen by a few million people in the period of a couple hours to days. And there is no way to ever get that back.
Should people protect themselves? Absolutely. Should people be criminally liable for the breach of privacy created by the unconsented posting or distribution of an intimate photography? I have to answer absolutely to that to, regardless of the foolishness of the victim themselves. A simple foolish act should not have criminally-permissible lifetime consequences in this area no more than any other (assault/rape/murder/etc).
Now, as to how anti-revenge-porn laws are actually worded, that’s a whole other kettle of fish.
Unlike the crimes you note, this would create a wholly new crime in order to “fix” a very specific problem, but with implications that would affect a far broader array of people and rights. So the analogy fails.
There has been quite a bit of discussion about the significant legal problems with revenge porn laws. If it interests you, you should familiarize yourself with them so that you understand the issues before opining. You might want to start here.
To be clear, I’m coming at this from the perspective of a person who resides in a country without a civilly-litigious culture (look North :p). There are also all kinds of problems with relying on the ability of someone to afford civil litigation when there is quantifiable harm.
Like I said – the provisions included in such laws are necessarily complex and up for debate, but I’m firmly in the camp that views at least some revenge porn as a matter best dealt with in a criminal context because of the inherent privacy breach involved. I think there are legitimate critiques to be raised of the way some American states are choosing to invoke criminal law, but I don’t think the details of the how negate the necessity of the why, which (correct me if I’m wrong) it seemed your original blog post was questioning.
So you don’t know the law, don’t know the issues, don’t want to learn the issues, don’t want to think hard about the issues, don’t want to take the time to learn, but want to have an opinion anyway. Sorry. Not interested.
If you have no clue what you’re talking about, then you’re not in any “camp.” You’re just ignorant, and that’s best done elsewhere. There is nothing interesting about discussing an important subject with someone who is utterly clueless and prefers to stay that way.
But so it isn’t a total loss:
That’s more than a little harsh.
I’ve read your posts (and Randazza’s excellent analysis) concerning the issues such laws run up against concerning the 1st Amendment of the American Constitution. I accept that. But that’s not what this blog post appears to be about. This post, rather seems to contend that advocates of anti-revenge-porn laws are hypocrites if they do not advocate against foolish behaviour, and misguided in advocating for a criminal law in the first place because if only people would stop behaving foolishly. In other words, it was philosophical rather than legal in tone. Again, feel free to correct me if I’m improperly interpreting what you’ve written.
Which is why I chose expressly not to dive into the First Amendment analysis – especially considering that in the case of my country it doesn’t actually apply – and discussed instead the philosophical basis for such laws even in the absence of getting people to stop behaving foolishly. If the original blog post, above, were a pure examination of the legal context of such issues in the United States as constrained by the First Amendment, I wouldn’t have commented (incidentally the reason I haven’t commented on your other posts on this topic, or Randazza’s blog either). It wasn’t, and so I did.
In the above context – the philosophical justification that revenge porn is somehow different from sexual assault, assault, or murder (which, when first prohibited by human societies were also “new crimes” to “fix” very specific problems) and therefore foolishness should be corrected rather than revenge porn criminalized – I respectfully think you are very wrong. I acknowledge the legal limitations in the United States, but you’ll again note – that’s not what your blog post above was actually referencing. In fact, you didn’t actually reference any of the legal issues at all – the blog talks only about the concept of victim foolishness and victim blaming, which is what I’ve responded to throughout.
I said you were more than a little harsh, and you were. You’ve moved the goalposts of a comment on a single blog entry from a philosophical perspective into the broader and specific debate concerning such laws in a certain legal jurisdiction, which I quite intentionally wasn’t addressing because it wasn’t referenced in your original piece.
So you’re not big on brevity, feel entitled to tummy rubs and you didn’t like the video? Sorry.
No, you have neither understood the point of this post nor limited your comments to the subject. However, buried within your many words, you do raise a point that this post is about:
Then you devolve:
The first part of the sentence is partially accurate. The second half completely misguided. And if you think me too harsh, you don’t have to comment any more. You do realize that no one is forcing you, right?
You realize he’s just trolling you, and you’ve fallen for it, old man. Lulz.
I admit I’ve been poking the bear a bit [insert joke about Canadians here] since Scott seems a little grouchier than usual today, but I do think there’s a bit of a reasoning flaw at work in saying that arguing for victim proofing is a necessary component to advocacy for criminalization, as detailed in my latest response to Scott.
You seem needlessly hostile, but then perhaps I should have expected it based on your comment policy below. “Expect civility from you, but that does not mean I will respond in kind”… Counselor, are you trying to entrap me? I thought that was behaviour reserved solely for law enforcement? =) [I said I thought your response to harsh, not that I was going to take my ball and go home because of it.]
Back to your original premise – OK, you don’t believe advocating for criminal law is wrong because if only people would stop behaving foolishly it wouldn’t be necessary. Conceded. So you contend that victim proofing is not victim blaming. I understand and concur with that. Back to the pre-beration, however, I’m not convinced it’s hypocritical to advocate for a criminal law against a reprehensible behaviour without simultaneously arguing for “victim proofing.” Yes, homicide/assault are old common law offences, but once upon a time they were also “new” criminal offences that were codified without requiring victim proofing. At least, I’m not aware of an country of Common Law tradition wherein people argued that assault or murder should not be crimes if you failed to exercise precautions that would make you a victim of them. Sexual assault is trickier, of course, because that argument is still made [generally unsuccessfully, fortunately] today.
So what – putting aside the First Amendment, for the moment – actually makes criminalization of revenge-porn fundamentally different? Again, I don’t think advocating against foolishness (or for victim proofing) is a bad idea, I just have a problem with the notion as being a prerequisite for advocacy of criminalization. Certainly, it wasn’t necessary in establishing other serious crimes against the person, so what, in your view, actually makes this different?
Yes, you’re right. It’s the exact same as murder. Except for the murder part. Now go have a Molsons and leave me alone.
From non-US perspective, it is clear that criminalization of revenge porn and free speech can be reconciled. The person’s right to dignity is a human right, too. The European Court of Human Rights had a case like this recently. In that case, a woman published a book detailing her sexual relationship with a prime minister. As a result, one sentence in her book, which included physical details, was considered to violate the prime minister:s privacy and she was convicted to a fine. The ECHR considered that this was commensurate balancing of public interest to have open discussion on private life of politicians and the privacy interest of the said politician. However, a prison sentence would have violated the European Convention on Human Rights.
The people who upload revenge porn are mostly ignorant kids, also. I would say that civil litigation us problematic also. Its costs and subsequent damages can ruin a person’s life as fully as criminal convictions. I’d say the issue should be handled as summarily as possible. A small, fixed fine (of the order of 20-50 dollars) handed out as a citation like a parking ticket should be enough to signal a society’s displeasure on such behaviour.
Yet another reason why I am very glad that we have no corollary to the ECHR in the United States. How’s that indictment of Bob Dylan for “inciting hate” in France working out?
People get their pictures taken nude by lovers. People also get tattoos and piercings. People drink too much and vomit in public. Stupid decisions have consequences, but if the consequences are disproportionate, given the high percentage of people engaging in those activities, then society should hoid a mirror to itself. It’s hypocritical to make a big deal about someone’s old nude photo, as if respectable people would never engage in sex.
However, betraying a trust should never be acceptable behavior. The people sharing photos they should be deleting need to be outed. The victims may feel sheepish, but they shouldn’t feel so mortified they can’t name the men who shared the photos. Those men’s employers need to consider whether they are trustworthy enough to be given responsibility for confidential information. Potential future sexual partners need to run screaming in another direction. But making it a criminal offense to be a turd to your former lover — requiring her to go public anyway to file a complaint — isn’t going to help the situation.
And the people using these jilted lovers and the women who escaped relationships with turd-men to extort money — extortion is already a crime.