A Pew study in 2017 found that 12 percent of Americans between the ages of 18 and 29 have had explicit images of them shared without their consent. Sometimes that takes the form of revenge porn—when someone shares an intimate image out of malice, as a way to get back at an ex. Sometimes, the person distributing the image is doing it for his entertainment. He doesn’t necessarily mean to hurt the victim by it, but the harm still happens. Whatever the intent, it seems likely that more people will experience it.
On Tuesday, New York joined 45 other states in banning revenge porn. (Massachusetts, Mississippi, South Carolina, and Wyoming are the states that don’t ban it.) New York’s new law, which has long been in the works, makes the malicious publication or sharing of an intimate image of a person without their consent a misdemeanor, punishable by up to one year in jail and a $1,000 fine. Back when the New York law was first proposed in 2013, only three other states had any kind of legislation about the sharing of intimate images without permission of the person photographed or filmed.
New York’s law treats sharing explicit images of a person without their consent as harassment, meaning it applies to people who publish nonconsensual sexual images of someone “with intent to cause harm to the emotional, financial or physical welfare of another person.” In order to bring a lawsuit, the victim has to prove that the person who published or shared the image did so “with the purpose of harassing, alarming, or annoying” the victim.
This all makes sense with revenge porn, which generally does entail the intent to harass or harm someone, and it’s critically important that the law has been updated to help these victims. But unfortunately, most cases of nonconsensual sharing of sexual images wouldn’t necessarily fall into the category of harassment, nor does the individual distributing the photos always want to cause some kind of distress to the person depicted.
Take the case of the 30,000-member Facebook group Marines United, which was outed in 2017 for hosting hundreds, potentially thousands, of explicit photos of female Marines and veteran service members without their consent. The creators and users of that group likely weren’t sharing images of unclothed female Marines in order to harm them. They were sharing the photos for their own entertainment. The group’s members probably didn’t even want the women to know their photos had been posted in the group. Under the New York law, those women wouldn’t have much recourse. According to a 2017 study conducted by the Cyber Civil Rights Initiative, a nonprofit that works on policy and helps victims of nonconsensual pornography, 80 percent of people who share private and sexual images of someone without consent aren’t trying to harm anyone.
And if someone whose photo was posted to the group did try to use the New York law, “It would be a nonstarter,” said Mary Anne Franks, a law professor at the University of Miami and the author of the first model bill to criminalize revenge porn in 2013. “There’s a huge difference in saying, ‘I know he’s doing this to hurt me’ and being able to prove in a court of law that’s why he did it. If you ask yourself, ‘What other reasons could a person give?’ a defendant could easily say, ‘I actually meant it as a compliment. I think she’s so beautiful that I shared her picture for that reason.’ ”
New York isn’t the only state that frames the harms caused by the nonconsensual sharing of sexual images as an act of harassment—that’s how the majority of these state laws approach the problem. But violations of sexual privacy, whatever the intent of the perpetrator, can permanently damage a person’s reputation and home life, and cause severe emotional trauma. It doesn’t matter whether the person who posted the picture meant to harass the victim or was just trying to enjoy himself—the harm remains.
As was the case in other states, the New York law was watered down in part thanks to advocacy from groups like the Internet Association, the powerful tech industry lobbying organization that represents companies like Google and Facebook. The Internet Association has long argued that revenge porn bills must include language about the intent to harm, according to Franks. She says that big tech companies want to protect themselves from being sued for hosting the images (despite the fact that technology companies are already protected by another law that shields them from liability for what their users post), since of course Facebook will never intend to harm or harass someone by allowing nude images of them to be posted on its platform without their consent.
Even if it does include language about the intent to harass, though, the New York bill stands out in other ways. “Our law is special because it creates new ways for the victim to take matters into her own hands,” Carrie Goldberg, an attorney who founded a victim’s rights law firm and worked on the New York bill, told me in an email. “For instance, if law enforcement is moving too slowly, now a victim can get an order of protection from family court.” Additionally, employers in New York are also not allowed to discriminate against an employee who has been a victim of nonconsensual porn. “Victims can also get a court order demanding that websites remove the content, which is a feature no other state has,” Goldberg added. (Franks and Goldberg both work with the Cyber Civil Rights Initiative.)
A handful of other states, like Illinois, have laws that aren’t couched in language about intent to harm victims. They focus instead on whether an image was shared without consent. Yet the Illinois law is currently being challenged. A woman who sent intimate photos of her ex-fiancé with another woman to his parents says the law violates her First Amendment rights. (She obtained the images through a shared iCloud account.) Ideally, Franks hopes Congress will pass the 2019 SHIELD (Stopping Harmful Image Exploitation and Limiting Distribution) Act, which has bipartisan support and was introduced in the Senate by Kamala Harris. It recognizes that nonconsensual pornography is a privacy violation of victims, rather than some form of harassment. “This mess with the state laws is one of the reasons clear federal criminal legislation on this issue is so desperately needed,” Franks, who wrote the federal model law the SHIELD Act is based on, said in an email.
New York’s new revenge porn law is a victory but not a complete one. Still, police are notorious for not investigating allegations of sexual abuse. “Having the law on the books, though, is only one piece of the puzzle. It’s now on our law enforcers—cops, detectives, prosecutors—and judges to take complaints seriously,” Goldberg said. “The law is meaningless if our public servants don’t use it.”
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.