Revenge Porn

The frequency of explicit images among lovers has resulted in a striking phenomenon called revenge porn. Due to the many cases of revenge porn, California has passed a law that punishes revenge porn. Discussed below is what you ought to know concerning this offense, and how it forms a basis for a criminal charge. If you have been arrested for revenge porn, do not hesitate to speak with the California Criminal Lawyer Group.

Understanding Revenge Porn Law

If you keep up with trending stories on social media, you probably know of the dramatic occurrence between Blac Chyna, Rob Kardashian, Twitter, and Instagram. Rob Kardashian allegedly shared three nude images of Blac Chyna and a video that Blac had sent him demonstrating her kissing another man. When Kardashian's Instagram account was suspended, he went ahead to post the content on Twitter.

As said by the legal team representing Blac, she could sue Kardashian. In other words, Rob Kardashian could face revenge porn charges.

It is an offense in California to post or electronically distribute an image of somebody else as a way of harassing, causing fear, or injury to an alleged victim.

The state of California passed Revenge Porn Law in 2013 when Governor Jerry Brown signed Senate Bill 255 into law. The new section to PC 647j4 makes revenge porn an offense.

Also known as cyber exploitation, revenge porn falls under nonconsensual pornography. Even though unhappy exes are often the perpetrators of this offense, a stranger can also commit revenge porn by hacking into another person's device or accounts and then posting the photographs they find.

Elements of the Crime

To be found guilty of cyber exploitation, the prosecution team must establish beyond any reasonable doubt that:

• You had a photo of an intimate body part of an identifiable individual or a picture of that individual engaging in oral copulation, masturbation, sodomy, or sexual intercourse
• You intentionally distributed the photo
• Both you and the other individual had agreed that the picture would remain private
• You were aware or ought to have been aware that distributing/sharing the photo could make the other individual undergo emotional distress
• The other individual experienced emotional distress

To comprehend the above legal definition of this statute, here is a closer look of the facts of the offense:

Intimate Body Part of an Identifiable Individual

As far as revenge porn law is concerned, intimate body parts include the following:

• Anus
• Genitals
• Breasts below the areola's top that is either visible through clothing or uncovered (if the alleged victim is a female)

Distribution of intimate body parts that can be seen through clothing also violates the law.

On the contrary, the term "an identifiable individual" means it's likely that the defendant would identify the alleged victim.

Sexual Act

Under PC 647j4, sexual act comprises of:

• sexual intercourse,
• oral copulation,
• sodomy,
• sexual penetration,
• masturbation, or
• any other act of sexual penetration by the victim or in which the victim participates.

Intentional Distribution

You intentionally distribute an image in case:

• you distribute it or
• deliberately make somebody else share it.

Harassment

Harassment is engaging in a willful or knowing conduct that is directed at a person that a reasonable individual would know is seriously alarming, tormenting, terrorizing, and annoying the victim, and that does not have a legitimate purpose.

Electronic Communication Device

Under this statute, an electronic communication device includes:

• Telephone
• Computers
• Cell phones
• Websites and web pages
• Internet/wireless/hybrid cellular gadgets
• Pagers
• Personal digital assistants
• Fax machines
• Video recorders

Are There Examples of No Guilt as Far as Revenge Porn Law is Concerned?

You cannot be sentenced for violating revenge porn law in San Jose if:

• You are reporting illegal conduct
• When complying to a court order or subpoena in legal proceedings
• When acting during public legal proceedings

Assembly Bill 602

Assembly Bill 602 is a piece of legislation that in case it is approved, will:

• give an alleged victim of a fake sex video
• the entitlement to take legal action against the individual who shared or created the video

Please note, the entitlement to take action will only exist in case:

• the individual shown in the material didn't consent
• to the video's creation or release

This new statute targets counterfeit videos that are called deep fakes. The recording graft a person's face (typically a celebrity) in a pornography film without the individual's permission.

Evidence Used When Charging Revenge Porn

More often than not, it is images and other electronic proof that has been distributed. Additionally, there could be accompanying evidence like emails, posts, and text messages to prove the defendant's identity.

However, showing the nude videos or photos isn't enough to prove the accused person indeed published the images. How can you establish the person making the allegation didn't agree to have the material shared or share the content themselves?

That is where a defense attorney comes in. The attorney will engage an expert who will study forensic evidence and determine if there is an authenticity issue, like:

• A person impersonating another person as a way to shift blame from themselves or
• If there is a challenge knowing the source of the message

Moreover, the attorney will look for an email chain. The email chain can show where the evidence was given to the person who published the content. If you don't have the material, then that forms the basis of a valid defense.

Other evidence that can be used in the case include the following:

• Admission of guilty by the defendant, including a disclosure that he/she knew of the video or images
• A statement by a witness who might have discovered or seen the revenge porn
• Statements by an alleged victim that they didn't give a consent

Penalties, Consequences, and Sentencing

Revenge porn is charged as a misdemeanor. It carries the following potential penalties:

• A maximum of a six-month county jail sentence
• Up to one thousand dollars in fines

The above penalties are enhanced to a maximum of a year jail sentence and two thousand dollars in fine if:

• The accused has at least one previous conviction for cyber exploitation
• The alleged victim was below eighteen years of age

Additionally, sentencing will be enhanced if the alleged victim is below 18 years of age or you are a repeat offender.

Immigration Penalties

A revenge porn conviction does have immigration repercussions.

Committing a moral turpitude offense in California can cause an immigrant to be:

• Marked as inadmissible, or

However, revenge porn does not fall under that category.

The Relationship Between Gun Rights and Revenge Porn

A revenge porn conviction will not affect your entitlement to possess or own a firearm. In California, a misdemeanor does not carry gun consequences.

How Much Compensation Can You Give an Alleged Victim If You Got Sued Over Revenge Porn in San Jose?

Depending on the case's circumstances, you can compensate the alleged victim the following damages:

• Compensatory damages like lost wages, pain, and suffering, and loss of future earnings
• Punitive damages, if you deliberately disseminated or published the photos or videos without consent

Legal Defenses

There are several legal defenses that your experienced criminal defense lawyer can use to fight revenge porn allegations. They include:

The Defendant Did Not Purpose to Cause Emotional Distress

Remember that you only violate the law if:

• You were aware or ought to have been aware that the distribution of the image
• Would make the alleged victim suffer emotional distress

As a result, it's a legal defense for you to claim that you did not know that. For instance, you posted an image as a prank and believed the accuser would find the content funny.

There was No Intentional Distribution

For you to violate this statute, you should have intentionally distributed the image. In other words, it is a legal defense for you to claim that:

• Although you distributed the image
• You didn't act so intentionally

Maybe you accidentally post it on a social media platform.

Consent

If the individual depicted in the photograph that you distributed or posed has permitted the distribution, you can use that consent as a legal defense to revenge porn charges.

It is worth noting that mere consent to the recording of the photo is different from consenting to its distribution. Additionally, you cannot use consent as a defense when you send a harassing message or conduct to incite the victim's harassment by others.

Hacking

Another legal defense involves hacking. There may be no liability if a hacker stole the photos from an alleged victim's computer, and then a third party distributed the images. It is because you did not distribute the images.

Please note, the individual who did not take the photos but distributed them cannot be found guilty of Penal Code Section 647j4.

The Individual in the Photographs isn't Identifiable

One of the elements of the offense is that the individual depicted in the photos you shared is identifiable. That means you could have a legal defense if you distributed an image where the identity of the individual in the picture isn't recognizable.

It is worth noting that identifying features include not only the victim's face but also birthmarks, tattoos, items in the images' background, and clothing. Other unique items in the photo that could be identified include unique artwork or decorations, distinctive property, and family photos.

Related Offenses

Discussed below are offenses that are charged alongside or in place of revenge porn in California:

Penal Code Section 647i PC (Peeking while Loitering)

According to PC 647i, it is illegal to:

• Peek in a window or door of an inhabited structure,
• While loitering on private property.

The difference between Penal Code Section 647i and revenge porn is that the former pays attention to peeking while the latter has to do with image distribution.

Penal Code Section 647j PC

According to Penal Code Section 647j PC, it is an offense to invade another person's privacy by:

• Using a gadget to see another person through an opening or hole
• Using a hidden camera to look through or under another person's clothing
• Using a concealed camera to look at an individual's body in their private room

Under PC 647j, it is illegal to invade privacy and doesn't require that the images be distributed or shown.

18 U.S. Code 1801 (Federal Video Voyeurism)

Per federal video voyeurism law, it is a federal offense for you to intentionally and knowingly:

• take a photo of another person's private area
• without the individual's consent, and
• act so when the alleged victim is in a location with a belief of privacy.

Please note, the law makes it illegal to take a photograph irrespective of whether it is shared or not.

Can a Revenge Porn Conviction be Expunged?

Under California PC 1203.4, it is possible to have your revenge porn conviction expunged. Also referred to as dismissal, an expungement seeks to release you from the negative repercussions of a conviction.

Some of the benefits of expungement include:

• A potential boss will not discriminate against you based on your expunged conviction
• Easier to acquire state licenses
• An expunged conviction cannot be used to impeach your credibility as a witness in a court of law
• Offers satisfaction and a chance to start over again

To qualify for expungement in California, you must have completed either your jail term or probation.

Why You Need a Defense Lawyer

No matter how well-educated or smart you're, the justice system is very complicated for you to represent yourself. Revenge porn law is new, and only a legal expert experienced in analyzing a case's circumstances can offer the representation you need to get justice.

Your defense lawyer will do more than asking a witness in court questions. They will:

• If you do not have a strong case, your qualified attorney can negotiate a plea bargain with the prosecutor. It is likely to result in a lesser sentence or reduced charges. Normally, prosecutors are not cooperative with self-represented individuals.
• Come up with a sentencing program designed to meet your needs. The program will also assist you to avoid future disagreements with the justice system.
• Assist you in dealing with embarrassment, fear, anxiety, and low self-esteem that comes with been charged with revenge porn
• Provide you with a reality check (an objective and informed perspective on your situation as well as what is expected to take place if your case proceeds to trial). The view will help you in deciding whether to accept a plea bargain or not.
• Your attorney is familiar with essential legal rules, which are almost impossible to find on your own if you are representing yourself. Most law rules are hidden in court interpretation of statutes.
• The attorney is familiar with court procedures and customs, which aren't written down anywhere. For instance, your lawyer might know which prosecutor has the power to settle your case and the arguments that will appeal to the prosecutor.
• Knows the hidden costs of pleading guilty that a self-representing defendant may never contemplate about.
• Engage investigators. The investigators will contradict witnesses who exaggerate stories at trial.
• Collect information from witnesses. Often witnesses fear defendants and consequently will refuse to speak to self-representing persons. Witnesses are likely to talk to criminal defense lawyers or investigators.
• Spend time on your case that you can't afford to spend. You have other commitments and, therefore, do not have enough time to speak with witnesses, conduct legal research, and collect and analyze documents.
• A court procedure involves a lot of paperwork and is laden with strict deadlines and rules. Your defense attorney has handled similar cases before, and they know the necessary paperwork. As a result, they will ensure your papers are well-prepared, without loopholes, and filed on time.

How to Help Your Criminal Defense Lawyer Win Your Case

Being charged with an offense can have a severe impact on your life and future. As a result, you need to do everything possible to reduce the potential negative outcome of the charge. One of the ways to do so is by helping your defense attorney defend you.

You and the attorney are a team, and here are the things you could do to make their work easier:

• Stay in touch with the legal expert - Your lawyer should be in a position to contact you anytime so that they can tell you the case's progress.
• Adhere to the attorney's advice - You engaged the attorney so that they can defend and advise you. If you want to realize the best possible results, you should follow the lawyer's advice.
• Don't talk to the police - Law enforcers are in search of both information and statements from you that could be used to strengthen the prosecutor's case. If you've information to reveal to the prosecution team, you should discuss it with your defense attorney first. And then let them convey the information to the police if they deem the information is in your best interests.
• Tell the attorney your goals - As the attorney works on your case, tell your attorney your goals. Informing the attorney of your goals can help them develop defense and work towards realizing the best possible outcome.

Frequently Asked Questions

1. Does Your Drive Have to Be Revenge To be Found Guilty of Revenge Porn? 

Penal Code 647j4 is known as revenge porn because, more often than not, cases begin when an individual breaks up with their spouse, partner, girlfriend, or boyfriend. The ex-partner is annoyed, so they go online and post nude images that they received before their relationship went sour.

Nonetheless, that does not mean that you have to be driven by revenge to be sentenced for revenge porn. You can be found guilty of Penal Code Section 647j4 for distributing images of a person you were not in a dating relationship with. All that is needed is you know that the individual in the photo may experience emotional distress when you share the photos.

2. What If You Deleted a Photo Immediately After Posting It?

There is nothing like deleting photos as far as the internet is concerned. Immediately you share an image, you might be surprised that somebody else has already taken a screenshot and saved the photo.

However, it could assist in proving that you didn't purpose to distribute the images or cause the alleged victim to undergo emotional distress if you deleted the photos immediately after posting them.

3. Can You be Arrested if You Accidentally Shared Nude Photos of Your Significant Other?

It is common for people in a romantic relationship to send nude photographs to one another. As a result, a situation where you're sending photos to another person and you accidentally click on and send the wrong photo is reasonable. In this scenario, your relationship with your partner could be in trouble. However, a defense attorney will have a defense to use if you are charged with Penal Code Section 647j4.

4. Your Significant Other Has Already Posted their Explicit Images Online. Can You Use that as a Defense to a Penal Code 647j4 Charge?

The fact that a defendant's significant other has willingly shared or posed for nude photos online could be a valid defense. The defense attorney could claim that the conduct did not cause the victim to undergo emotional distress.

5. Can Website Owners be Held Responsible for Revenge Porn?

According to Federal law, states are not allowed to impose criminal or civil liability on website owners who repost user submissions. It is because the website owners are not responsible for third-party content.

6. Can a Judge Order That Revenge Porn Be Taken Down from the Internet?

Yes. If the alleged victim wins the case, the judge can grant injunctive relief. The injunction can take several forms, like ordering you to remove the material from the internet. 

Find a Skilled Revenge Porn Defense Lawyer Near Me

Revenge porn is quickly becoming a prevalent issue, thanks to the rise of the internet. It is a severe offense, and if accused, you risk facing expensive fines, incarceration, among other consequences that can affect the rest of your life. Knowing that you don't have to walk alone through this trying moment is the initial step to protect your legal rights. Work with the competent defense attorneys at California Criminal Lawyer Group to understand the laws surrounding your allegations. Call us today at 408-622-0204 to schedule your initial free consultation and allow our lawyers to review the case and explain your available legal options.

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