New Crime Hidden Inside VAWA

The House voted to reauthorize the lapsed Violence Against Women Act ((VAWA), which maintains that curious name given how much of the domestic violence is purports to address is committed by women as well as men. The political angle of the bill is to make it unpalatable to gun-rights activists and politicians by “closing” what Democrats call the “boyfriend loophole,” thereby enabling Dems to claim that Reps don’t care about women when their problem with the amended bill is the law’s extension of the forfeiture of Second Amendment rights to men convicted of misdemeanor “domestic abuse and stalking” to boyfriends as well as spouses.

The most contentious issue in the House-passed bill is a provision that expands the criminal threshold to bar an individual from buying a gun to include misdemeanor convictions of domestic abuse or stalking. It would also close the so-called boyfriend loophole to expand the definition of who is affected by existing gun prohibitions to include dating partners. “This legislation makes it clear that Democrats consider gun ownership a second-class right,” said Rep. Bob Good, R-Va.

But there is another federal crime created for the first time that appears in the bill that hasn’t gotten much notice, no less attention. It comes from an amendment by Rep. Jackie Speier, who has claimed a close and dear friendship with Mary Anne Franks for years, and would create a federal felony for revenge porn.

To add insult to injury, the venue and jurisdiction for prosecution would be anywhere, so a defendant, no matter where in the world they may be, could be tried in any federal district of a  prosecutor’s choosing, and any United States Attorney who could be persuaded to take the case would have in personam jurisdiction over the defendant. Guam? Why not (Marjorie Taylor Greene’s knowledge of geography notwithstanding)?

(f) VENUE AND EXTRATERRITORIALITY.—A prosecution under this section may be brought in a district where the defendant or the depicted individual resides or in a district where the intimate visual depictions are distributed. There is extraterritorial Federal jurisdiction over an offense under this section if the defendant or the depicted individual is a citizen or permanent resident of the United States.

Orin Kerr caught this buried gem and raised a list of questions about what it’s supposed to mean.

I believe this language has just passed the House, and is now going to the Senate, as part of the VAWA package. I confess it strikes me as a train wreck of statutory drafting, but I don’t know if it is on anyone’s radar screen in the Senate. Stay tuned.

Among the issues Orin spotted with the language:

Is that supposed to mean that the individual (a) has that belief, (b) the individual’s belief is reasonable, and (c) the defendant is reckless w/r/t the fact that the belief exists?

And what do you think “remains private” means? Is that just that that particular distribution won’t happen? Or that some other distribution won’t happen?

The phrase “reckless disregard” is a little puzzling in a federal criminal statute because my sense is that it’s usually used in tort law, not generally in criminal law. Is it just trying to attach a reckless mens rea to the element? If so, does it mean MPC recklessness? Other?

And looking more at the “remains private” language, I gather it doesn’t that mean that particular distribution because that would make (a) and (b) duplicative. Any thoughts on what other kind of of distribution “remains private” might mean?

I assume the “touches on a matter of public concern” test is from 1st Amendment law. I gather the idea is that if you know First Amendment doctrine, and you apply that particular constitutional test reasonably, your conduct is not a felony?

There are, I presume, what academics prefer to call “tentative thoughts” about the Speier amendment, trying as she does to sneak through the back door what she would be incapable of getting passed on its own. For long time readers, the litany of problems with “revenge porn” laws are well known, and even if Mary Anne’s too fragile and petty to admit it, reflect changes such as “public concern” based on criticism here.

This “hidden gem” reflects most of the problems that have plagued efforts to criminalize revenge porn in the past, but this time including a variety of magical interlocking mindset questions as to what people know about what’s in other people’s minds, and this becomes particularly bizarre as the law would apply downstream to republishers (think people who retwit something) who have neither knowledge, nor way of having knowledge, of what someone else had in their head.

The trick here, which reflects the political savvy of not merely hiding a crime within a law whose title is particularly apt in this social justice climate, but one that possesses a potent political threat to use against anyone voting against this law as being a supporter of violence against women.

Would the public react kindly to a new law that eliminated voting rights for any person convicted of a misdemeanor at a time when activists are pushing as hard as they can to restore voting rights to everyone, regardless of conviction? Yet this is the case with another constitutional right. Even if you abhor the Second Amendment, it’s a constitutional right, and as long as that’s the case, its forfeiture should be no less concerning than any other constitutional right.

And the same holds true for the First Amendment rights that will be sacrificed by the revenge porn amendment. Even if you’re prepared to take the risk of posting because you believe it to be of “public concern,” the crime doesn’t care what you believe, but what constitutes an “objective belief,” meaning what a jury determines to be a “reasonable person’s” belief as to public concern. Are you reasonable? Are you willing to stake a federal felony on it?

9 thoughts on “New Crime Hidden Inside VAWA

  1. Gregory Smith

    Legally and objectively, there is no such thing as a “loophole.” There are only laws that don’t do what you think they should.

    1. SHG Post author

      It’s just a rhetorical trick for the unwary. Unfortunately, it works because most people are unwary.

  2. Guitardave

    “…but lately I been thinkin’.
    ya gettin’ mighty cold,
    well if it ain’t the switch honey,
    it just might be the bulb…”

  3. Tom Zakes

    Not sure how far this will go.
    I’ve posted photos of my wife on Facebook that folks have commented “She’s gonna kill you if she sees that.”
    We’ve all seen that the original purpose of a bill can get twisted all around afterwards.

    1. SHG Post author

      Don’t mistake the problems with bad laws being an endorsement of revenge porn. The latter can be horrible and devastating to its victims, but that doesn’t mean a law can be devised to prevent it that isn’t itself unconstitutional or dangerously bad.

  4. B. McLeod

    Well, we desperately need more federal crimes, because there is too much idle prison space.

  5. Charles

    Filburn’s stalking chafed Wickard because it was economic. But after U.S. v. Lopez, a passing mention of commerce-y language isn’t enough. Or maybe it is. It’s been 26 years since then…

  6. Rengit

    This reads like it was drafted, rather than by prosecutors, defense attorneys, or experienced legal writers, by the advocacy offices of a large network of women’s shelters, just cutting and pasting words from other statutes not even related to sex crimes, and then voila! A federal revenge porn law.

    Why should they heed words of caution from prosecutors, who don’t take revenge porn seriously? Why should they take objections from criminal defense attorneys, who want to let these misogynists run free?

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