Fast Exit > 0

Revenge Porn

New York does not have a Revenge Porn law. . .YET.

September 13, 2016

I wrote the below article over a year ago. (And eek, can’t find it in the blog archives, but did find it reprinted on a law school’s website.) Although a little outdated, it does reflect the current status of our NYS laws re: revenge porn and unlawful surveillance. It is relevant now because of the proposed city revenge porn bill.

Some news sources, politicians, and even Governor Cuomo have erroneously claimed
that a “revenge porn law” passed in New York State on August 1, 2014. This is untrue.

Now let’s get it straight. A law DID pass on August 1, 2014, but that law was not related
to the nonconsensual distribution of nude or sexual photographs or videos (i.e. revenge
porn). Rather, that law (Bill S1982C-2013 aka A2053C-2013) closed a much-needed loophole in
our pre-existing criminal statute pertaining to unlawful surveillance. It amends Penal Laws
250.45, 250.55 and 250.60. The text is at the bottom of this blog.

This newly amended law applies to the surreptitious recording of sex and nudity. It
applies only to situations in which the depicted person does not know or consent to being
photographed/recorded. Think: nonconsensual amateur porn.
The law amends one little, albeit important, thing. See, it already was criminal to record sex
without a person’s permission. However, in order for it to be a crime, the victim’s nude body
parts needed to be visible. So it didn’t cover scenarios when, say, a person was engaging in oral
sex or semi-clothed or if the victim’s intimate parts were obscured by, say, somebody else’s
intimate parts or the result of a poorly positioned secret camera.

With the amendment, it’s illegal so long as SOMEBODY’s intimate parts are exposed in
the picture. This is a victory for women given the less protruding, and hence, less
cinematographically capture-able nature of the female anatomy.

But make no mistake, the new law does NOT apply to situations when a person
consented to the original capture of the image or video – or produced it themselves (i.e. selfies). It
does NOT apply to times when a person shares a sexual selfie with their partner, who later posts
it on Instagram, a revenge porn website, or, say, texts it to the school. The telltale feature of
revenge porn is that DISTRIBUTION of the image is without consent. In the typical revenge
porn case the original capture of the picture IS consensual.

The cause for the confusion relates to the “justification” text in the legislative Memo. It
explains the genesis for the new law, stating that a victim complained to Clarkstown police that
an image of her had been posted on the internet. The image showed her engaging in intimate
sexual conduct, but none of her sexual or intimate parts were exposed. The text goes on to state
that the current unlawful surveillance laws could not be applied because her nude parts weren’t
showing. However, for her scenario to actually be covered by the new law, another fact must be
present: the image needs to have been created without her consent or knowledge. (The bill’s
justification text does not indicate whether the picture was with or without knowledge/consent.)
So, assuming it was a classic case of revenge porn – picture taken with consent, distribution
without – the poor Clarkstown lady’s fact pattern remains outside the scope of the very law it
inspired.

The scenarios in which the newly amended law WOULD apply are those like the pending
New York County case where the Wall Street financial advisor recorded himself having sex
without his partners’ permission. If any of the multitudinous videos he created fail to show his
partners’ intimate parts, those particular videos were not illegal prior the passage of this
amendment. The law goes into effect on November 1, 2014 and lucky for him, it’s not
retroactive.

Hopefully this will clarify things for people such as the misguided upstate Assembly
Member whose office confidently insisted that revenge porn is already illegal in New York State
when a desperate client of mine contacted the office to push for legal reform.
But, now would be a great time to make revenge porn illegal, New York. Other states are already
passing SECOND versions of their revenge porn laws. As of yesterday, both houses in California
voted in favor of expanding their ALREADY existing laws to include Selfies. Terrific job,
California, on listening to the advice of The Cyber Civil Rights Initiative!

One more thing: just because revenge porn may not technically be illegal, if certain other
facts are present, it could trigger other penal laws and violate an order of protection. And, of
course, there’s civil law. So hardly can this hole in our law be viewed as a license to engage in
the pathetic and cowardly conduct.

The new unlawful surveillance law (new language is in caps):
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND
ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 4 of section 250.45 of the penal law,
asadded
by chapter 69 of the laws of 2003, is amended and a new
subdivision 5 is
added to read as follows:
4.Withouttheknowledgeorconsent of a person, he or she intentionally
uses or installs, or permits the utilization or
installation of
an imaging device to surreptitiously view,
broadcastorrecord,under
theclothingbeingwornby such person, the sexual or other intimate
parts of such person[.]; OR
5. FOR HIS OR HEROWN,ORANOTHERINDIVIDUAL’SAMUSEMENT,ENTERTAINMENT,
PROFIT, SEXUAL AROUSAL OR GRATIFICATION, OR FOR THE
PURPOSE OF
DEGRADINGOR ABUSING A PERSON, THE ACTOR INTENTIONALLY USES OR
INSTALLS
OR PERMITS THE UTILIZATION ORINSTALLATIONOFANIMAGINGDEVICETO
SURREPTITIOUSLYVIEW,BROADCAST, OR RECORD SUCH PERSON IN AN
IDENTIFIABLE
MANNER:
(A) ENGAGING IN SEXUAL CONDUCT,ASDEFINEDINSUBDIVISIONTENOF
SECTION 130.00 OF THIS PART;
(B)INTHESAME IMAGE WITH THE SEXUAL OR INTIMATE PART OF ANY OTHER
PERSON; AND
(C) AT A PLACE AND TIME WHEN SUCH PERSON HAS A REASONABLE
EXPECTATION OF PRIVACY, WITHOUT SUCH PERSON’S KNOWLEDGE OR
CONSENT. S 2.
Section 250.55 of the penal law, as added by chapter 69 of the
laws of 2003, is amended to read as follows: S 250.55
Dissemination of an unlawful surveillance image in the second
degree. A person is guilty of dissemination of an unlawful
surveillance image in the second degree when he or she, with
knowledge of the unlawful conduct by which an image or images of
the sexual or other intimate parts of another person or persons
were obtained and such unlawful conduct would satisfy the
essential elements of the crime of unlawful surveillance in the
first or second degree, AS DEFINED, RESPECTIVELY, IN SECTION
250.50 OR 250.45 OF THIS ARTICLE, intentionally disseminates such
image or images. Dissemination of an unlawful surveillance image
in the second degree is a class A misdemeanor. S 3. Subdivision 1
of section 250.60 of the penal law, as amended by chapter 157 of
the laws of 2003, is amended to read as follows: 1. He or she,
with knowledge of the unlawful conduct by which an image or
images of the sexual or other intimate parts of another person or
persons were obtained and such unlawful conduct would satisfy the
essen- tial elements of the crime of unlawful surveillance in the
first or second degree, AS DEFINED, RESPECTIVELY, IN SECTION
250.50 OR 250.45 OF THIS ARTICLE, sells or publishes such image
or images; or S 4. This act shall take effect on the first of
November next succeed- ing the date on which it shall have become
a law.
Carrie Goldberg runs C. A. Goldberg, PLLC, a Brooklyn-based law firm that focuses on litigation
regarding Internet privacy (e.g. “revenge porn” and “sextortion”), sexual assault, domestic
violence, and public figure crises. She is also a Board Member at the Cyber Civil Rights
Initiative.