“Hey, there are some naked pictures of you online!”
That is not a text message most people would like to get, but it was a reality for Melissa.
“About three of four years ago after I moved to Louisville, I met a guy online,” Melissa said. “We flirted for a couple of months and somewhere in there, I sent him some nude photos at his request.”
To Melissa, who just wanted to go by her first name in this story, sending a few nude pictures wasn’t that big of a deal. She even forgot about them for a while.
Then the text messages started.
“All of the sudden, my phone was blowing up with messages left and right about me being online naked,” Melissa said.
She quickly went to the sites her friends told her about, and sure enough, there they were: “I was shocked! I had sent something to someone I trusted in private. Now here it was for the whole world to see.”
Melissa would directly ask the guy she had talked to online why he shared her images. Although he claimed he didn’t do it, there was no one else she shared those particular pictures with.
“At first, I cried. Cried out of anger at myself for sending the pictures in the first place,” she recalled.
Today, she takes a different approach to the situation.
“OK. They are out there. It sucks. It is what it is.”
But Melissa also said a continual shadow looms over her head due to the photos: “You never know when you’re having a conversation, a date or a job interview with someone who has seen you naked.”
Whenever Melissa tells her story, one of the first questions she is asked is, “Why didn’t you press charges?”
At the time that Melissa’s pictures were shared, Kentucky did not have a law that forbade the sharing of revenge porn.
But, in 2018, after House Bill 110 went into law in Kentucky, it became a crime to post private, erotic images and videos online of another person without their written consent, if the intent is to harm, harass, intimidate, threaten or coerce that person.
Despite the law, revenge porn in Kentucky — and everywhere else — remains a multi-layered problem.
Currently, there isn’t a federal law forbidding posting pornography without the consent of all people in the video or picture, which can cause jurisdiction issues. If someone from Kentucky is in a piece of revenge porn that was posted from a state without legal ramifications or with different legal language, it can be difficult to prosecute. Even though 46 states have some sort of law, the constitutionality of those laws have been challenged in several places, including successfully in Indiana, intensifying the importance of a federal law.
There are also other issues outside of jurisdiction problems and the First Amendment. El Hoffmann is the founder of Virago Nation, an organization that provides resources for survivors of intimate partner violence. She has also had explicit pictures of herself taken without consent.
“One of the things I realized was, while there are a ton of defense attorneys out there, plaintiff attorneys that specialize in this sort of thing are few and far between,” Hoffmann said.
Even when legal representation is procured, there are a host of other peripheral problems that stand in the way on the path to justice.
“For a victim of intimate partner violence, it can be very hard to pursue the prosecution of someone who posts your images as the possibility of re-traumatization is very high,” Hoffmann said.
Potential professional ramifications may also cause someone to think twice about taking the fight over explicit images public.
“Depending on your career field, if employers become aware of your images, it could lead to workplace harassment or even losing your job,” she said.
Issues such as these create a maze of challenges that complicate the pursuit of justice.
“It’s never as easy as it should be,” Hoffmann said.
History, Definition And Motive
From its beginnings in the form of stolen nude photos in the pages of a 1980 issue of Hustler Magazine to dedicated websites and social media groups of the modern day, revenge porn has been used to make the private moments of many people public. Psychologists have pointed to the desire to “get back” at someone who has hurt you as the reason that people share revenge porn; it is the ultimate ability to hurt and embarrass someone. While “revenge porn” is the most frequently used term, it does create a narrow view as to why these images and videos are shared. While some perpetrators do seek to embarrass ex-romantic partners, others are not motivated by vengeance or personal feelings towards the victim.When asked why she thought the man she met online shared her nude photos, Melissa said that his actions, “Weren’t out of spite but rather, out of opportunity.” Images have been used for a variety of different reasons other than revenge, such as in trading for the nude photos of others and demanding ransom money from the victim in the picture or video. As such, the term “nonconsensual pornography” is a better description of the crime. Nonconsensual pornography is defined by the Cyber Civil Rights Initiative as the distribution of sexually graphic images of individuals without their consent and is a term that is broad enough to capture the multiple motivations behind sharing naked photos. And, according to a study performed by the Data & Society Research Institute, around 10 million Americans have either been threatened with or have been victims of nonconsensual image sharing.
While preparing to compete in the 2017 Miss New York USA Pageant, Nathaly Rodriguez began receiving phone calls and text messages from an ex-boyfriend threatening to post nude pictures and videos of her online. Rodriguez initially thought that he was bluffing. She quickly realized this was no joke however, when she received a link to the porn website where he posted a video of the two having sex as well as details that would easily allow viewers to discover it was her.
“He knew about me running in the pageant, and he wanted to make sure I would never have a chance at winning,” Rodriguez said on the steps of New York City Hall in 2017. In the fallout of the posting, Rodriguez reported being unable to sleep, eat or work, as well as having thoughts of suicide.
According to recent studies, while women under 30, minorities, and members of the LGBTQ community are more likely to be threatened with revenge porn than men, about 25% of revenge porn victims are men. Of that percentage, 9 out of 10 of them are also victims of “sextortion.” Sextortion is defined as a form of revenge porn that involves financially blackmailing the victim on top of the humiliation of being exposed online. Eighty-one percent of men do not report their cases. The reasons men don’t report revenge porn cases aren’t much different than the reasons they don’t report other sexual crimes as embarrassment and fear of ridicule from other men stand as barriers.
The use of nonconsensual sexual images have also been used for revenge by scorned third parties as well. During my tenure serving as a university hearing committee member, we had a case come before us where a male member of the school’s cross country team was accused (and ultimately found responsible) for video taping himself having sex with one of his female teammates without her knowledge or consent. The video surfaced when the man’s girlfriend found the video and posted it on Twitter to get back at him. While the girlfriend acted out of the hurt of infidelity, posting the video was, in fact, illegal. When questioned, she had no idea she violated the law.
Between Here And D.C.
In 2016, Kentucky state Rep. Joni Jenkins and then-Rep. Tom Riner sponsored a state bill that addressed revenge porn. Jeff Metzmeier, the division chief of the Domestic Violence Intake Center, the unit of the Jefferson County Attorney’s Office that handles these types of cases, testified in support of the bill in front of the House Judiciary Committee.“On average, we get about one victim a month, so a law was definitely needed,” Metzmeier told LEO. “I had to play the bad guy with so many victims, telling them there wasn’t a law against this type of thing.”
The Commonwealth adopted House Bill 110 into law on July 14, 2018. Under this law, (KRS 531.120) it is a crime to post private erotic material online of another person without their written consent — significant because of the clear language that concrete permission is necessary.
Depending on the specifics of the offense, the financial penalties range from $500 to $10,000 while imprisonment penalties range from no imprisonment at all to 10 years. Metzmeier also states that judges can require the defendant to erase or destroy the offending material, an action that his office regularly requests.
Although there isn’t currently a federal law forbidding nonconsensual pornography, an effort to make nonconsensual pornography a federal offense was introduced in 2017. Sens. Kamala Harris (now vice president), Richard Burr and Amy Klobuchar introduced H.R.4472. Titled the ENOUGH Act (Ending Nonconsensual Online User Graphic Harassment), this bipartisan bill seeks to amend the federal criminal code to make it a crime to knowingly distribute (or intentionally threaten to distribute) an intimate visual depiction of an individual with knowledge of or reckless disregard for the individual’s lack of consent, reasonable expectation of privacy and potential harm; and without a reasonable belief that such distribution touches a matter of public concern.
As the internet allows people to connect despite distance, a federal law would give power to victims whose offenders are located in different states.
“I’ve seen that sometimes happen and a federal law would help in that situation,” Metzmeier said.
As of this writing, the bill sits in the House subcommittee on crime, terrorism, homeland security and investigations.
The Challenges
The first nonconsensual pornography state laws were introduced in 2013. While Texas, Alaska and New Jersey already had broad privacy laws that included revenge porn, by the end of 2014, 13 states had passed laws that specifically banned nonconsensual pornography. And, as of 2020, 46 states as well as Washington D.C. have enacted laws. However, these laws do not come without challenge.Minnesota’s nonconsensual pornography statute was put into effect on Aug. 1, 2016. The state’s Nonconsensual Dissemination of Private Sexual Images statute was meant to punish those who intentionally shared sexual images intended to be private, without consent. Since its enactment, over 300 people have been charged and over 100 have been convicted under the statute.
In 2018, Michael Anthony Casillas was convicted of felony nonconsensual dissemination of private images after he used his victim’s password to access her online accounts and retrieved sexual photos and videos of her after their relationship ended. The images were sent to 44 people and posted online as well. Initially, Casillas received a 23-month sentence. On appeal however, rather than defending Casillas’ actions, his attorney John Arechigo would attack the law itself.
Arechigo argued that the law had been too broadly written, stating that the statue applied a “negligence mens rea” standard, which meant that prosecutors did not have to show that a defendant intended to cause harm. While making sure to highlight that he was not advocating for the right to distribute revenge pornography, Arechigo argued that the law was unconstitutional as it “sweeps up people who don’t have any criminal intent, including people who accidentally disseminate images.” This argument worked. While the Court of Appeals called Casillas’ conduct “abhorrent,” they vacated the conviction on the grounds that the statute is unconstitutional, effectively striking down the law. Arechigo later stated:
“The Court of Appeals thoroughly and thoughtfully analyzed the issues and arguments we raised. This case wasn’t about whether people should be able to disseminate ‘revenge porn.’ It was about the law that Minnesota legislators passed three years ago. The law was poorly written. The law didn’t punish an invasion of privacy, as the state argued. The law didn’t even require an invasion of privacy as a basis to bring criminal charges. The Court of Appeals properly ruled the law punished speech in violation of the First Amendment. It’s up to state legislators to craft better legislation if they’re really trying to protect victims of ‘revenge porn.’”
The Casillas’ case is important because it sets a precedent for other states. As nonconsensual pornography statutes are relatively new laws, it is no surprise that other states would look at Minnesota for guidance in their own legal challenges. In 2020, Indiana’s revenge porn law was also ruled unconstitutional. In March of that year, Trine University student Conner Katz recorded a video of himself in an intimate act with another student in a campus fraternity house. He would later show the video to others. Katz was charged with distribution of an intimate image, a Class A misdemeanor, however the case was dismissed in October by Magistrate Randy Coffey on the grounds that Indiana’s revenge porn law violated the right to freedom of speech. Coffey stated that he used guidance from the Minnesota appeal case to rule Indiana’s law unconstitutional.
Similar to Minnesota is the overturn of Texas’ nonconsensual pornography law. On Sept. 1, 2015, the state made it a Class A misdemeanor to publicly post intimate photos of a partner that were sent with the understanding they remain private. A violation of the law could bring a $4,000 fine and a sentence of one-year imprisonment. Texas’ law was ruled unconstitutional in 2018 for being overly broad as it could be used to punish anyone who shared images online regardless of if they knew the image was nonconsensual pornography. In 2019 however, the Texas Senate sought to fix the law, voting 31-0 to approve House Bill 98. The bill specifies that photos and videos must be posted with the intent to harm the person depicted, and the offender must know that the victim had a reasonable expectation that the material would remain private. The bill was signed by Gov. Greg Abbott and went into effect Sept. 1, 2019, providing other states a blueprint on how to rewrite their own laws when faced with First Amendment challenges.
When asked about the constitutionality of Kentucky’s law, Metzmeier believes it would hold up against a First Amendment challenge.
“I think our law adequately describes what we’re talking about,” he said. “It isn’t vague and the fact that we include a portion requiring written consent to share any images, really helps the law meet constitutional muster.”
Celebrities, Marines And The Internet
Nonconsensual pornography is not just limited to small incidents. There have been several examples that show just how widespread the practice of sharing sexual images of others is. On Aug. 31, 2014, a large collection of private images and videos of various female celebrities were posted on the 4chan imageboard site. Christened The Fappening (a combination of the word “fap”, a slang term for masturbation, and the word “happening”), celebrities including Jennifer Lawrence, Kate Upton, Kirsten Dunst, Rhianna and Hope Solo found their nude images leaked to the site. After their initial posting, the photos would be reposted to other internet message boards (such as Reddit) and a variety of websites created specifically for sharing the pictures, many of which are still active today.While some celebrities such as singer Ariana Grande and actresses Victoria Justice and Yvonne Strahovski would claim that the pictures posted of them were fake, others would admit the authenticity of their photos. Actress Mary Elizabeth Winstead stated that her pictures were taken with her husband years ago in the privacy of their home. As the pictures had been previously deleted, Winstead stated that a large amount of effort must have went into finding them. Model Kate Upton called the posting of her pictures an “outrageous violation of her privacy” and threatened legal action for those behind the leak.
Louisville-born actress Jennifer Lawrence would highlight the seriousness, saying:
“It is not a scandal. It is a sex crime. It is a sexual violation. It’s disgusting. The law needs to be changed, and we need to change. That’s why these web sites are responsible. Just the fact that somebody can be sexually exploited and violated, and the first thought that crosses somebody’s mind is to make a profit from it. It’s so beyond me. I just can’t imagine being that detached from humanity. I can’t imagine being that thoughtless and careless and so empty inside.”
While it still isn’t known who was responsible for initially posting the images online, the methods that five men used to obtain the images were discovered in an FBI investigation. The U.S. Attorney’s Office states that Pennsylvania man, Ryan Collins sent the celebrities emails that appeared to be from Apple and Google, asking them to provide their usernames and passwords. Collins gained access to the accounts and thus, the private photos. Another hacker (working independently of Collins) Edward Majerczyk from Chicago, would use the same phishing scheme to hack into the accounts of 30 celebrities (and many other non-celebrities) gaining access to their private information as well. Through IP address tracking, Emilio Herrera, also from Chicago, was found to have accessed 572 individual iCloud accounts using a phishing scheme. George Garofano, from Connecticut, was also named in the investigation. Unlike the other hackers, Garofano claimed he was pressured into the hacking by other, more sophisticated criminals.
Christopher Brannan, a former special education teacher from Virginia, was the latest to be named in the hacking. In addition to using the phishing scheme, Brannan surveyed the social media accounts of his victims to help him answer security questions and gain access to their accounts. In addition to celebrity accounts, Brannan also targeted his then-underaged sister-in-law as well as other students and teachers at his former school. While the FBI stated that the hackers were unconnected, they were part of the same online network that non-consensually traded these images and videos.
Collins received 18 months in federal prison after pleading guilty to felony hacking. Majerczyk pled to the same charge, receiving 9 months imprisonment. Herrera received 16 months imprisonment while Garofano received eight months. Lastly, Brannan received 34 months in prison for his role in the breach.
Another large-scale incident involved a branch of the United States Military. In 2017, the United States Department of Defense investigated hundreds of Marines for their part in a secret Facebook group used to share nonconsensual pornography. The group “Marines United” had over 30,000 followers and featured thousands of explicit images of unknowing servicewomen. The images came complete with dossiers of the women, which included their names, military branches and rank. Former Marine Corps corporal (and current tattoo model) Elle Audra told The Marine Corps Times the aftermath she has faced since her pictures were shared. “The messages are usually something around like: ‘when were you in’ and ‘I would have fucked you too,’” Audra said of the messages she has received from strangers on Facebook. She even received a request for sex from a man who knew the specifics of when and where she was deployed.
Civilians weren’t safe from Marines United either. Michigan bartender Kelsie Stone broke up with her Marine boyfriend in 2016. Shortly after, Stone received a text message from a friend alerting her that nude pictures of her had been shared on Facebook. Stone recognized the pictures immediately as she had previously sent them to her then boyfriend while he was away training in California. She would report not only receiving lewd comments on social media, but also receiving in-person harassment from Marines who frequent her bar. Cyberstalking and harassment are both common outcomes of the circulation of nonconsensual nude images. Ultimately, over 100 Marines were punished for their involvement with Marines United.
One of the largest distributors of nonconsensual pornography was the online image board called Anon-IB. The board was founded in 2006 and hosted thousands of images of women, cataloged by the state and country where they live. Anon-IB became notorious, being named “ground zero” in the sharing of the photos from the 2014 Celebrity Leak as well as also being a sharing point for the Marine United photos. In 2018, a Dutch cybercrime team seized the Anon-IB forum as a part of an ongoing investigation. But in 2020 there were reports of someone trying to revive the board, stating a new site that took the name and appearance of the original board. While Anon-IB may be one of the biggest, it is hardly the first website with the sole purpose of sharing revenge porn.
In 2013, a suburban mother who goes by the pseudonym Ariella Alexander was reported to be the brains behind shesahomewrecker.com, a website where scorned wives could send nude pictures of their husbands’ mistresses for posting and public ridicule. Websites such as thedirty.com and myex.com would follow suit, creating an avenue for and promoting revenge through the sharing of nude photos.
In 2012, the FBI investigated the site, isanyoneup.com. In an interview, the site’s creator Hunter Moore would dub himself a “professional life ruin-er,” stating that he wanted to take full advantage of people’s mistakes.
For the most part, sites will now remove pictures at the victim’s request.
“My pictures will occasionally pop up on a site called Mewes,” Melissa said. “I can usually get them removed if I know about them though,” she continues.
For Melissa and her husband, doing Google searches for her images has become a regular practice. For others though, the process of getting their pictures removed from sites has not been as easy as Melissa’s, with some reporting having to pay as much as $500 for removal. While many of these revenge sites still exist, the enactment of state laws have started to help wipe them of the nonconsensual images they once proudly posted.
For Your Eyes Only
A common, tone-deaf response to victims of nonconsensual porn is telling them if they don’t want their nude photos shared, they shouldn’t take nude photos in the first place. But as writer and producer Lena Dunham has said, that response is the equivalent of telling a rape victim that they should not have been wearing a short skirt.
The distribution of nonconsensual pornography, be it for clout or revenge, is a sex-based crime. For its victims, it carries the potential for emotional and mental damage and can threaten professional and financial standings as well. And while state laws are a great response, a sweeping federal law would potentially close legal loopholes, hold those who share private moments accountable and send a national message about the seriousness of this crime. Melissa agrees, saying she is in favor of a federal law like the ENOUGH Act passing.
“If anything, it will legitimize revenge porn as the form of sexual assault it is.”
