You just posted a nude photo of your ex, and now you are facing criminal charges! Few people understand the repercussions of posting sexually explicit photographs in which the victim is identifiable. Maybe you don't even know it is a crime!

Technology has caused explosive growth in cyber harassment. Revenge porn is a form of cyber harassment accomplished by distributing images of the victim’s intimate parts or while the victim is engaged in sexual activity. It is an act of non-consensual pornography.

If you are accused of revenge porn, you risk facing both criminal and civil penalties. Therefore, having an attorney representing you will make a difference in your case. The LA Criminal Defense Law Firm will defend you if you are facing charges of domestic violence offenses such as revenge porn. We are familiar with California domestic violence laws, including the defenses we can apply to defend you.

Overview of Revenge Porn and Domestic Violence

When we hear the term “domestic violence," we form images of a couple where one partner physically abuses the other. We see it as a serious crime. The emotional spheres of domestic violence are blurred and often ignored above those that can manifest physically.

Revenge porn is increasingly growing as a form of domestic violence against an intimate partner. Revenge porn has taken domestic violence to a new level, digital. The current ability to share images in a few clicks has made domestic violence an even wider area.

When we think about sharing images, we view it as normal, easy, and harmless. However, when these images are sexual, then the victim is likely to be embarrassed by them going around the globe.

California defines domestic violence as any form of abuse against an intimate partner through intentional or reckless acts that result in the use of force against that person.

Revenge porn expands these dimensions to include any reckless and intentional acts that result in the emotional suffering of the victim. Intimate partners can use the internet and social networking sites to manipulate, intimidate, and perpetrate abuse against former or current partners.

You are an intimate partner if you are a current or former:

  • Serious dating partner
  • Spouse
  • Registered domestic partner
  • Fiancé
  • A cohabitant or live-in romantic partner

Legal Definition of Revenge Porn

The internet and increased connectivity to social networks have made revenge porn a rapidly growing menace. It has the potential of ruining the victim's life, with consequences as severe as suicide. States across America are rising to fight against this offense by introducing laws to punish offenders.

In 2013, the suicide of a 15-year old teenager set the pace for the introduction of revenge porn laws in California. Revenge porn does not necessarily refer to acts that aim at getting revenge against the victim; instead, it reflects upon the intent of the offender to cause emotional pain to the victim.

California Penal Code 647 (j) (4) defines revenge porn as a form of non-consensual pornography that involves the following elements:

  • You possess the image of an identifiable person who is engaging in sexual activity or an image of that person's intimate parts
  • You distribute the image intentionally
  • By distributing the image, you breach the understanding between you and the victim to keep the image private
  • You know that by distributing the image, the other person will suffer emotional distress, pain or embarrassment
  • The person on the image suffers emotionally

One significant difference between invasion of privacy and revenge porn is that the latter involves initial consent by the victim to taking a photograph or video. In the offense of invasion of privacy, however, the victim is not aware of you taking pictures, recording of his or her private parts, or while he or she is engaged in a sexual act.

One of the distinguishing elements of the offense is the intent to cause the victim emotional harm or distress. The prosecution will prove that you intended to cause emotional pain to the victim if:

  • You engage in extreme, reckless, or outrageous conduct. An extreme act is one that you commit with malice that exceeds the bounds of normal. In this case, posting or distributing sexually explicit images of a person without his or her consent is extreme. The act is likely to cause emotional pain to the victim.
  • That leads to severe emotional distress to the victim (severe emotional distress is one which lasts for a long time after the act. for example, if you posted a nude photo of your classmate, and he or she is so embarrassed he or she misses classes for weeks, then she has suffered severe emotional pain)

You are guilty of the offense if you distribute the image, request another person to distribute it, or you intentionally make another person distribute the image. Revenge porn charges often arise from breakups or conflicts in sexual relationships where a disgruntled partner distributes offensive photos of the victim engaging in sexual activity or showing their intimate parts.

An intimate part in 647 (j) (4) refers to:

  • A female's breasts from the top of the areola downwards (fully uncovered or visible under clothing)
  • The anus
  • Partially or fully exposed genitals

Legal Consequences of a Revenge Porn Conviction

California classifies revenge porn as a domestic violence offense as well as a violation of cyber harassment laws. The rationale behind classifying the offense as domestic violence, especially where a sexual partner is a victim, is that it causes as much harm as physical abuse would cause. It also has similar consequences. These consequences include:

  • The victim can file a restraining order against you which might prevent you from being near the victim or posting any images of the victim or both
  • If you are going through custody proceedings, the victim is likely to use the conviction against you to secure full custody
  • Jail time
  • Fines
  • A permanent criminal record, which will affect you, job seeking, or career advancement prospects. Some employers reject employees who have any conviction
  • Loss of firearm rights for at least ten years
  • Victim restitution (victim restitution is different from the damages you pay during a personal tort proceeding. The court orders the payment of victim restitution as part of the criminal proceedings)
  • The court may also order you to pay some money towards a battered women’s shelter
  • Immigration consequences – revenge porn is a crime of moral turpitude. You might, therefore, face deportation charges if you are a permanent resident in California. If you are yet to enter the US, then you become inadmissible. If you are a permanent resident facing revenge porn charges, then you must contact an attorney who understands the criminal defense and immigration law
  • Professional disciplinary actions including loss of your license
  • You could face a personal injury lawsuit where the victim sues you to recover damages resulting from your actions. Such suits can be worth millions of dollars depending on the egregiousness of your actions and the severity of the emotional trauma

Revenge porn is a misdemeanor in California. The penalties include incarceration and fines. In most cases, the penalties for a first offense include maximum incarceration of six months in county jail and a fine of up to $1,000. For subsequent crimes, you face a jail sentence of up to one year and $2,000 in fines. You could also be sentenced to misdemeanor probation.

If you committed the act against a minor, then the penalties become severe. You will be convicted for child pornography, which carries a mandatory requirement to register as a sex offender

In some situations, it is legal to share the intimate or sexually explicit photos if:

  • The act is in the course of reporting any unlawful activity
  • You are complying with a court order or subpoena to be used in a legal proceeding
  • As part of a public legal proceeding

Investigating Revenge Porn

An investigation of revenge porn begins with the victim. He or she is notified or discovers images of him or herself posted. The victim then makes a report with the police. Often, the victim will name the person he or she thinks is responsible for the offense.

The victim names the responsible person based on who had access to such images. For instance, if the victim shared nudes with an ex-partner, and these images appear online, the first suspect becomes the ex-partner.

Often the victim searches other sites that might be having any of her images to determine the extent to which the images have spread online.

The police might collaborate with IT experts to determine the origin of the images and locate the device(s) used to publish the images online. Through establishing the source device, the police can now identify the device owner.

If police can gather sufficient evidence to prosecute you, they will forward the case to the prosecuting agency. The prosecutor will then gather relevant evidence before deciding whether to sue you.

Once you are charged with an offense, it is up to you to defend against these charges. The best way to fight revenge porn charges is by hiring a revenge porn defense attorney as soon as you can.

Preferably, hire an attorney before the arraignment. The attorney will advise you on the best way to approach the case. In most cases, the attorney will advise you to take a not guilty plea, which gives you the chance to evaluate the evidence against you.

Your attorney will also investigate to gather relevant evidence to support you. This could include interviews with the victim, getting a computer crime forensic expert, and your testimony.

Your attorney will also examine the evidence the prosecution has, including how they obtained that evidence. The evidence provides sufficient information about how well it meets the standards of “beyond a reasonable doubt." If the evidence falls short, your attorney can call for the prosecution to dismiss the charges against you.

Legal Defenses

California laws require that the prosecution prove all the elements of a crime beyond a reasonable doubt for you to be convicted. In revenge porn cases, the most complicated element is proving the intent to cause emotional distress.

Intent reflects a state of mind and ignorance of the results of one's actions. For example, if you text your ex, promising that you will ruin his or her life by posting intimate images, then the court can easily prove intent.

However, the line becomes blurry in internet-related crimes of non-consensual pornography. Both authorized and unauthorized people can access the contents of a device and share them as they please, regardless of the impact on another person’s emotional well-being.

Therefore, you must hire a lawyer who has expertise in dealing with criminal defense. An added advantage is an attorney who has dealt with internet crimes or has connections with reliable experts in solving computer crimes. 

1. False Accusations

 As with most domestic violence charges, emotions are usually running high and can result in retaliatory acts, including false accusations. For instance, a person could use your phone to upload his or her images then accuse you of revenge porn.

Sometimes, the police arrest a suspect based on the report the victim makes. In this case, the victim could mistakenly accuse the wrong person of distributing these images.

Revenge porn sometimes can happen when the “victim” intending to manipulate or control his or her partner posts intimate images and accuses the person of sending them. 

False accusations involving revenge porn get complicated due to the difficulty of establishing the source of online activity. Usually, someone could hack into your phone or computer and distribute intimate images they find on your phone.

If you are falsely accused, it is your attorney’s job to dig deeper and identify the source of the offense. He or she can look at the evidence and the whole situation from a fresh perspective.

False accusations can be damaging to your reputation and life. Therefore, you must fight them aggressively to secure your freedom and reputation. If you may have an idea of why these false accusations are there, inform your attorney so that he or she can investigate.

2. Lack of Intent

You must have the intent to cause emotional distress to the victim by posting his or her sexually explicit images. However, if you committed the act accidentally, for example, uploading a photo you thought was not the sexual one, the court cannot find you guilty for the offense.

You could also be lacking in intent if you did not believe that the images would cause emotional harm to the victim.

3. Lack of an Understanding to Keep the Images Confidential

One of the elements of revenge porn is that you must violate the understanding that the sexually-explicit messages are supposed to remain confidential. In most relationships, it is expected that both parties keep any sexual images of each other must be kept private.

However, in some situations, the victim might not have explicitly stated that he or she expects that the images will remain confidential.

For instance, if the victim has posted similar images, then it implies that he or she does not regard them as private.

4. Illegal Search and Seizure

If the police find evidence of revenge porn through an illegal search or seizure, then the prosecution cannot use the materials as evidence against you. Therefore, if the crucial evidence in the charge included the material from the illegal search, you will not be prosecuted.

An illegal search and seizure violated your Fourth Amendment right to be free from unreasonable search and seizure.

Related Offenses

Revenge porn relates closely with other offenses depending on the:

  • The nature of the offense
  • The age of the victim
  • The circumstances of the offense

Some of the related offenses include:

1. Child Pornography

While revenge porn conjures up images of an ex posting sexual images of their former partner, it could apply to people who have never had a romantic relationship. The outstanding element is the image:

  • Has an identifiable person
  • The person is engaging in a sexual act, or his or her intimate parts are visibly
  • The intent is to cause emotional harm to the person in the image

When the victim of revenge porn is a child, then you could be charged with child pornography under PC 311.11. The statute prohibits knowingly possessing or controlling any child pornography materials involving a person below 18 years.

Child pornography refers to material depicting sexual conduct by a person under 18 years. It could include videos, images, or films.

Child pornography is a wobbler. As a misdemeanor, the penalties include a fine of $100 to $2500 and a maximum term of one year in county jail. When convicted for felony child pornography, you face up to three years in state prison and must register as a sex offender. You also risk being deported or denied entry into the US upon conviction.

You could be guilty of child pornography even if the victim is older than 18 at the time you post the image. For example:

Kathy is fifteen. She sends a nude image of herself to her 21-year-old boyfriend, John. Five years later, Kathy and John break up, and John posts her nude photo online to shame her. John could be charged under California’s child pornography laws because Kathy was a minor at the time of taking the image.

2. Indirect Electronic Cyber Harassment

Electronic cyber harassment is a computer crime, which involves sharing harmful information about someone else that might encourage a third party to harass the victim. Some cases of revenge porn have included people leaving the address and other identifying information of the victim, which opens the victim to harassment.

You are guilty of indirect electronic harassment if:

  • You distributed, published, emailed, hyperlinked or made available the personal identifying information of another person using an electronic communication device
  • You shared that information without the consent of the victim
  • You intended to cause fear to the victim or their immediate family
  • You intended to cause unwanted physical contact, harassment or injury
  • The information you shared is likely to cause unwanted physical contact or harassment to the victim

California punishes indirect electronic cyber harassment as a misdemeanor. The penalties include summary probation, a year in county jail and $1000 maximum fine.

Expunging Your Records

A conviction for revenge porn stays on your record permanently. Therefore, it will appear on background checks years after the conviction. The consequence is that you have trouble securing jobs, advancing your career or education, and finding decent accommodation.

Therefore, expunging your criminal records serves your best interests by removing the criminal record from public view. A record expungement lifts the burden of the criminal record and allows you to lead a normal life.

Before expunging your criminal record, you must complete probation and fulfill all the conditions set by the court upon your sentencing.

Once you fulfill these requirements and are eligible, you can contact your attorney to help you with the paperwork. Once you expunge your criminal record, you can get relief from some of the negative consequences of a conviction.

For example, getting a job becomes easier. Professional bodies cannot deny you a professional license based on your expunged conviction.

Find a Revenge Porn Defense Attorney Near Me

Revenge porn is a relatively new area of law that is still confusing to most people. The confusion is not helped by non-consensual porn sites dedicated to encouraging the offense.

If you are facing charges of revenge porn, the first step you need to take is contacting a revenge porn attorney. The attorney will explain the scope of revenge porn laws, the possible consequences, and defenses you can apply.

Fighting revenge porn charges help you avoid most of the consequences associated with domestic violence. You get to safeguard your reputation and avoid criminal penalties. If you are found guilty, your attorney can negotiate for lesser sentencing, including probation and community service.

The LA Criminal Defense Law Firm understands the confusion most people feel when facing a revenge porn charge. We help you sort through the legal jargon to understand the charges that you are facing. Our lawyers have worked with clients facing domestic violence charges as well as offenses related to computers and the internet. Contact us today at 310-935-1675 for a consultation.