I was interviewed on local CBS New York yesterday about the proposed revenge porn bill in NYC. As a reminder, New York State is one of the hold-out states where it is legal to distribute naked images of another person without their consent. Two Council Members (Lancman and Garodnick) have taken it upon themselves to propose a NYC bill so that at least 8 million of our state’s 20 million people are protected. One of the questions asked during the TV interview was: “What kind of opposition can we expect from naysayers?” It’s never in my interest to articulate my opponent’s arguments. So I just left it with, “[T]hey want to continue exploiting sexual privacy.” However, I would like to mention some of the more idiotic explanations I hear about why we don’t have — or need — a revenge porn law.

LAWS CAN’T KEEP UP WITH THE TIMES. Wrong. We have lots of laws addressing high tech issues. New York Penal Law alone, has ten different computer crimes. Plus, if it were so hard for laws to keep up, why do 35 other states have revenge porn laws, not to mention that for the past 2+ years, lawmakers had the opportunity in Albany to vote for Braunstein’s bill so that the law could keep apace with the times.

WE JUST DON’T NEED MORE CRIMINAL LAWS What? We’re done? How does a society decide when it’s time to just close the book on criminalizing new behaviors? And why now? Why not 100 years ago? If 100 years ago we stopped creating crimes, it would be legal to hack and drunk drive and engage in wire fraud and crash airplanes. We evolve and so do our crimes. Next time you are in a plane, consider how you’d feel if 50 drones started crashing into the cockpit window. Sorry guys, but we can’t create new criminal laws. It’s the cost of flying that sometimes drones will crash into the cockpit.

IT WILL CLOG UP THE JAILS The point of the law is not to throw people in jail, but to deter the behavior from happening in the first place. Criminal laws deter. The threat of being sued does not deter. Offenders are often — but not always — judgment proof. People without money are not afraid of being sued for money damages.

WE ALREADY HAVE SYSTEMS FOR VICTIMS TO GET HELP. These people say that we already have methods to handle revenge porn — civil lawsuits and copyright. As mentioned above, the threat of being sued does not deter behavior for judgment proof individuals. Civil suits are expensive, time-consuming, invasive, frightening, attention-attracting. Plus, why should the burden be on a private citizen and not on law enforcement to deter objectively awful conduct? Copyright only applies to situations where the material is owned by the victim. If the offender took the video/pic or somebody else did, she is out of luck. Plus again, a federal copyright lawsuit is not cheap or fast.

FREE SPEECH. Certain civil liberty groups irresponsibly claim that it is unconstitutional to restrict expression even if that expression consists of sharing naked images of another person without their consent. This is bonkers. But people believe the lawyers who spread these lies because the lawyers work for liberal organizations that do good work in other departments. These lawyers claim there is no way to draft a law that is constitutional. Remember, these are the same entities who have fought against child pornography laws and animal snuff films back in the day. They like to claim that the cost of living in a free society is that some people get injured by wrongdoers who exploit that freedom. That is just lazy anarchist thinking. We have lots of laws that restrict the distribution of information (HIPAA, trade secrets, music piracy, etc.). It’s just that those laws pertain to commercial and consumer interests — not to individuals. Who is lobbying for individuals?!

WHAT ABOUT THE KIDS. Some opponents are afraid that “innocent young people” will be arrested for making a boys-will-be-boys mistake. The truth is that young people are capable of exacting horrific acts. I’ve got no shortage of cases in litigation demonstrating just how ruined a kid’s life can be at the hand of another kid. The solution is not to carte blanche refuse to pass sensible laws for acts for which kids could be found culpable. Rather, the solution is for lighter punishments and discretion for judges and prosecutors to route young offenders into diversionary programs. Plus, don’t forget, young offenders are usually aggressing against young victims. So in the context of revenge porn, we already DO have laws that apply — our child porn laws. Nobody is saying we should get rid of our child pornography laws because an underage perpetrator of revenge porn could get busted under one. No, instead we’ve created diversionary options. We can do the same for revenge porn laws.

Two thirds of states have laws against revenge porn. There, the lawmakers care about the sexual privacy of citizens. New York can’t continue being a safe harbor for perverts and abusers to sexually humiliate innocent people. If we can’t get our state to pass a law, our city must act.

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