Sometimes, when those in an intimate relationship disagree and go their separate ways, one party may be more aggrieved than the other. As a result, the injured party may want to get back at their former partner by sharing revenge porn. The law makes it a criminal offense, often punished as a misdemeanor when you share nude photos or sexual videos of your ex-partner for revenge. The state considers the damage you cause the other party and how devastating it would be to their lives, terming it a serious offense.
If you get charged with revenge porn, a conviction has severe repercussions with the possibility of registering as a sex offender. Fighting the allegations must be your primary objective to avoid the regrettable consequences. With a lawyer from Long Beach Criminal Attorney, we can assure you of excellent and professional defense services resulting in a favorable outcome.
Understanding the Revenge Porn Law in California
The statute that describes revenge porn in California is found under PEN 647(j)(4). According to the law, if you share intimate photos, videos, or other material of another person without their consent, you have committed a crime. If you get charged with revenge porn under this statute, you intended to shame the other party in materials shared.
The law further states that if you intentionally share intimate parts of the body or videos of sexual deeds like intercourse, oral copulation, sodomy, or masturbation of your ex-partner, it is an offense. Further, as you share these materials, you understand they are private and cause emotional distress to the victim.
There are some instances, however, where this statute does not apply. When you record yourself naked or take a selfie and share, it is not a crime. Equally, if you received the pornographic materials and shared or redistributed it and are not responsible for recording or taking it, it is not an offense under this statute.
Equally, you cannot be punished for this offense if you host a website that hosts revenge porn when the material came from a third party. You cannot be charged with this offense if you hacked someone’s phone or computer and accessed the documents that you proceeded to share.
PEN 647(j)(4) only applies where the supposed victim and you agreed and knew the images and videos were private and not shared with others. However, if you had recorded the victim without permission, you will be prosecuted under a different law. Sometimes, if the victim knew you were recording them or took intimate photos of them, it might be difficult for the prosecutor to show that you knew the materials were private.
A conviction under this law requires the prosecutor to show that you intended for the other party to be ashamed and emotionally distressed. Additionally, the victim must indeed have suffered as a result of your actions. However, proving you intended to cause emotional pain is hard for the prosecutor unless you admitted it was your goal.
Proving Revenge Porn according to PEN 647(j)(4)
Some aspects to revenge porn offense must be established to get convicted of the crime. These elements include:
- You have an image showing an intimate body part of the victim that is identifiable or photos of them in sexually compromising positions
- You intentionally shared these images of your victim through various means to others
- That you had an understanding with the person featured in the recordings or photos that they were private and only for you
- You knew sharing of these materials would cause emotional suffering to the victim
- And your sharing resulted in significant emotional trauma to the victim
According to the law, the intimate body parts don’t have to be totally exposed. But as long as one can see parts of genitalia or breasts, even through clothing, it is an offense. The law further indicates that a person featured in the photos or videos must be easily identifiable. If it is impossible to recognize the individual in the pornographic materials, you are innocent of the crime.
Penalties when Found Guilty of Violating PEN 647(j)(4) – Revenge Porn
Revenge porn allegations are prosecuted and punished as misdemeanors. The punishment for this crime is harsh if guilty of it. The judge often hands down the sentence that is highly influenced by the circumstances around the crime.
As a first time offender, you will receive a six-month jail sentence in county prison and a cash fine of not above $1,000. The final monetary charges, however, increase with the addition of the allegations by the court. If you were previously convicted of the same crime or the recordings and pictures belong to a minor, the sentence is steeper. In this case, the penalties will be jail time of one year with a fine not over $2,000.
Revenge Porn in Nonconsensual Pornography
Earlier, we stated that the law severely punishes persons that use revenge porn to get back at others. Typically, the electronic media is what is used to perpetuate the offense. This means, if you used electronic means or devices to distribute revenge porn, you would get charged with the offense. You can use the media by sharing the images or videos through a revenge porn site or other platforms and even by forwarding through your phone. Your aim while sharing these is to cause the victim distress or to hurt themselves.
In other circles, revenge porn is known as cyber exploitation. This is nonconsensual pornography typically committed by revengeful ex-lovers. However, a stranger can get charged with nonconsensual pornography (NCP) as well. This happens when the victim’s electronic device gets hacked, and you share the images or videos you find.
Harassment and Revenge Porn via Electronic Media
As earlier stated, the growth in technology has made it easier for persons to use revenge porn as punishment towards their ex-partners. If allegations are made that you used electronic media for revenge porn, misdemeanor charges will be brought against you. For you to get convicted, however, the prosecutor must show the various elements to the offense. These include:
- You made use of electronic media to post, email or share images and videos where the person is identifiable without their permission
- You shared these materials intending to harass the victim through electronic media and
- Your purpose was to intimidate, cause pain and fear to the person and their loved ones
If the prosecutor can determine these elements, aside from facing PEN 647(j)(4), you will also be prosecuted for PEN 653.2 violation. This law is designed to protect individuals from electronic media harassment that includes revenge porn.
Some terms used in the description of the offense may not be expressly understood. However, to make it easier for you to understand the crime, we shall discuss the various terms in detail.
Electronic Media or Communication Device
When you are accused of revenge porn by using an electronic device, you used your computer, cell phone, wireless device, internet, and websites, among many to distribute pornography for revenge.
Harassment
Harassment, according to the law, is when you intentionally and knowingly do something directing it to another person to alarm, annoy, terrorize or torment them. When you intentionally share confidential material that does this to the other person, you are harassing them.
Sexual Acts
Revenge porn laws prohibit anyone from distributing recordings or pictures of another individual in sexual deeds without their permission. The decree outlines the various activities that constitute sexual acts, and they include masturbation, sodomy, sexual intercourse, oral sex, and many more. If you had pictures or recordings of your ex-lover doing any of them and sharing them after a break up to embarrass them, you are guilty of revenge porn.
Intentional Sharing
This element of revenge porn crime is among the hardest to prove. The prosecutor must show the court that your actions were deliberate because you aimed at causing distress to the victim. Your lawyer can easily challenge this element by showing that the images were accidentally shared, or you never planned to hurt the alleged victim.
Intimate Parts of the Body
The laws prohibiting revenge porn describe an intimate part of the body as any part considered private in a person’s body. These parts include the genitals, breasts, or the anus.
Penalties for Using Electronic Media for Revenge Porn
When your ex-partner claims that you used an electronic gadget as earlier discussed to carry out revenge porn, you will face two consecutive charges. The primary underlying offense, in this case, will be revenge porn, as found under PEN 647(j)(4). Additionally, you will be prosecuted for harassment through electronic media, as found under PEN 653.2. The offense is charged as a misdemeanor with a conviction carrying a one-year jail sentence and a $1,000 fine.
If you are accused of hacking into your ex-partner’s electronic device to obtain pornographic materials that you distribute to embarrass them, the sentence is harsher. Your conviction on this offense will earn you a jail sentence lasting between sixteen months and thirty-six months. Additionally, you may be ordered to a fine not exceeding $10,000, or the fine is charged instead of the jail sentence.
Defending Revenge Porn Allegations
Revenge porn laws are complex, with the state expected to determine particular elements to arrive at a conviction. The consequences when found guilty are severe, and your primary objective would be to avoid them. With a skilled attorney, you can successfully fight the allegations and receive a desirable outcome of your case. Your attorney studies the claims you are facing and the available evidence to formulate legal defenses. Some defenses when accused of revenge porn include:
The Person in the Material Shared is not identifiable
People cannot claim that they are the ones in the pictures or images you shared if they cannot be recognized. One of the critical aspects of this crime is that the image or recordings show the alleged victim clearly, and any person seeing them will know them.
However, if the person had a distinct feature that could identify them and is visible in the images or recordings, this defense cannot be used. For instance, a recognizable birthmark, tattoo, background, or clothes, among others, can be used to identify the person.
The Sharing was Never Intentional
One of the crucial elements to getting convicted on revenge porn charges is your intentional sharing of the materials. The prosecutor must prove that you shared the images or videos intentionally for you to be guilty. For instance, when doing an email where you have to include several attachments, you can accidentally attach the image embarrassing to the other party. With the help of evidence, you will be found innocent of the crime.
However, if you captioned or discussed the photo in sharing the photo, it will show you knew what you were sharing and did it purposely. In such a case, the defense is not applicable.
The Materials Shared did not Lead in Emotional Trauma
The prosecutor can find it challenging to show the victim experienced distress due to the shared material. Pain is hard to prove because no physical proof existed. Because of this, your attorney can argue the pictures never caused any kind of distress, and so you are not guilty of revenge porn.
You were Permitted to Share the Material
Sometimes, the alleged victim may have consented to the materials’ sharing but later changes their mind. If you had already shared before they changed mind, you could not be accused of sharing pornography for revenge. However, this defense, just like the others, requires a presentation of evidence to be valid.
Consequences of Revenge Porn Charges to Immigration Status
Your immigration status will not be adversely affected by your conviction on this offense. The offenses that adversely affect immigrants are those involving moral turpitude or violent felonies. Fortunately, revenge porn is not one of them, meaning your immigration status remains. Equally, the conviction will not make you inadmissible to America.
Find a Defense Lawyer Near Me
In a moment of anger or frustration following a break-up, you may use revenge porn to get back to the other party. Equally, you can be falsely accused of the offense or have committed it by accident. Without proper representation in court, you can quickly get convicted of the crime and face regrettable consequences. Fortunately, with our help at Long Beach Criminal Attorney, we can vigorously defend you against harsh effects. Call our offices at 562-308-7807 and let us discuss your case.
