Revenge Porn Defense
California’s “revenge porn” law is essentially an extension of existing invasion of privacy statutes although it is more aggressively prosecuted than other California invasion of privacy laws. If you have been accused of this type of privacy invasion, hire an experienced revenge porn lawyer to help you protect your rights.
What Constitutes Revenge Porn?
Revenge porn only exists when an image is taken without the subject’s consent, taken consensually but shared without consent, or both taken and shared without consent.
The typical scenario is a bad dating breakup, followed by one of the ex-dating partners distributing intimate sexual images to harm the latter’s reputation with family, friends, and employers. Just the act of posting the images on social media or other outlets may not be enough for a conviction. If there is no evidence of emotional distress, there is no conviction.
What Does Not Constitute Revenge Porn?
Aside from the emotional distress issue, factually speaking, here are examples of what is not considered to be revenge porn:
- Two adults consensually enter into a business agreement for sexually explicit images to be distributed for sale or in exchange for advertising revenue on adult websites. The deal goes bad, and the subject of the of the photo accuses the defendant of engaging in revenge porn for distributing the photos without consent.
- Unauthorized distribution of an unflattering photo of someone in a bathing suit or underwear, in which the subject of the image has no intimate areas exposed and is not engaged in a sex act.
- The subject of the image never objects to the distribution of the intimate images, later changes his or her mind and calls the police without ever telling the defendant to remove images.
What Must the Prosecution Prove in a Revenge Porn Case?
In order to obtain a revenge porn conviction in California under California Penal Code Section 647(j)(4), the prosecution must prove the following elements beyond a reasonable doubt:
- The defendant intentionally distributed an image of the intimate body part of parts of another identifiable person engaged in a sex act.
- There was an agreement between the defendant and the subject of the image that the image would remain private.
- The defendant knew that distribution of the image would cause serious emotional distress.
- The distribution of the image did, in fact, cause the subject of the image serious emotional distress.
As you can see, there is a lot for the prosecution to prove here. Proving an agreement that the images would remain private and that the act caused emotional distress can be extremely difficult.
What Are the Penalties for a Revenge Porn Conviction?
In California, revenge porn is a misdemeanor punishable by a period of informal probation, which may include up to six months in county jail and $1,000 in fines. A second conviction for revenge porn or any prior conviction of an invasion of privacy offense is punishable by informal probation, up to one year in county jail, and up to $2,000 in fines. If the alleged victim is a minor, an enhanced punishment applies in addition to criminal liability for violating child pornography law. In all revenge porn convictions, the defendant may also be responsible for payment of restitution for mental health treatment or related expenses incurred as a result of his or her conduct.
If you or a loved one is facing revenge porn charges in LA, Los Angeles County or anywhere in California, contact revenge porn defense attorney Jerod Gunsberg at (323) 633-3423 or via the secure contact form on this page for a confidential consultation.