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New York’s Revenge Porn Law Is a Flawed Step Forward

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Governor Andrew Cuomo signed a bill into law this week criminalizing the spread of nonconsensual pornography, making New York the forty-sixth state to implement such protections for its residents. Unlike many “revenge porn” laws before it, New York’s version includes private right of action in addition to criminal penalties, allowing victims take additional steps like suing the perpetrator for money, or demanding that a website take down their illegally shared images. It’s undoubtedly progress—but also an object lesson in how US legislators fail to fully understand the problem they’re trying to solve.

Sharing another person’s private nude images online is now a Class A misdemeanor in New York. Victims will also be able to obtain an order of protection, and file for workplace harassment if the offender is a colleague. “This law should put pervs on notice,” says Carrie Goldberg, founder of victim’s rights law firm C.A. Goldberg, which championed the bill. “The gavel will come down hard on anybody foul enough to take somebody else’s sexual autonomy into their own hands.”

For victims of nonconsensual pornography, the vast majority of whom are women, any law that provides means of legal recourse will come as good news. As governor Cuomo said in a statement, “our laws have not kept pace with technology and how abusers can use it to harass, intimidate, and humiliate intimate partners.” Anti-revenge porn activists like Badass are rightfully celebrating New York’s progress. Still, even to people deeply involved in the bill’s development, it represents only a partial victory.

“Advocates were not willing to let another year go by without a law on the books.”

Carrie Goldberg, Lawyer

The law is overdue, for one. “While we pleaded for this law for over half a decade, my firm saw thousands of New Yorkers become victims,” reports Goldberg. “A law would have protected them and probably deterred the revenge porn in the first place. Instead, these people lost jobs, relationships, and suffered extreme emotional distress. It is indefensible.” New York Assembly member Edward Braunstein and Mary Anne Franks, the tech and legislative policy advisor for the Cyber Civil Rights Initiative, first drafted a bill criminalizing nonconsensual pornography in 2013, a time when few other states had similar laws on the books.

At the time, and in the six years since, New Yorkers whose private images were wrongly shared were only protected under the state’s existing harassment legislation. In 2014, the state’s first nonconsensual pornography case, People v. Barber, proved those anti-harassment laws inadequate. A man allegedly shared nude images of his girlfriend on Twitter and sent them to her family and employer, but Judge Steven Statsinger dismissed the case because, technically, New York defines harassment as direct communication with the victim. Because the man never sent his girlfriend her own images—which is not at all how “revenge porn” works—the law did not apply.

The new law still defines spreading nonconsensual pornography as a form of harassment, meaning that the defendant has to act with “the intent to cause harm” to fall under the new law’s purview. Franks and Danielle Citron, vice president of the Cyber Civil Rights Initiative, feel that makes the law a missed opportunity—though they celebrate the progress of adding additional rights for victims represents.

Contrary to popular belief—and the implications of the crime’s colloquial name, “revenge porn”—including language about the perpetrator’s intent means the law will now miss the majority of the perpetrators it hopes to censure. The Cyber Civil Rights Initiative’s research has shown that about 80 percent of nonconsensual pornography actually gets shared as impersonal entertainment, and by strangers rather a vengeful ex. Celebrity nude photo leaks are a great example: The hacker who spread images of Jennifer Lawrence, Gabrielle Union, and other female celebrities in 2014 says he bore them no personal ill will. If the law instead considered nonconsensual pornography an invasion of sexual privacy, perpetrator motive becomes a nonissue in every single incident.

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Franks and Citron note that they consider the wording of New York’s bill no fault of Braunstein or Goldberg’s. “They tried for years and years to hold their ground on this,” Franks says.





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