Does New York’s Criminal ‘Revenge Porn’ Law Need to Be Fixed?

New York’s “revenge porn” law, Penal Code §245.15 (“Section 245.15”), criminalizes the intentional, nonconsensual dissemination or publication of a sexually suggestive intimate image with the intent to harm the emotional, financial, or physical well-being of another person. . When signed into law by then-Governor Andrew Cuomo in 2019, Section 245.15 was hailed as a landmark effort to address a growing phenomenon in which individuals attempt to “punish” their exes and others by maliciously posting them on porn sites. sites and other places.

Simultaneously, the Legislature enacted Civil Rights Act §52-b, which creates a private right of action for nonconsensual dissemination and publication of intimate images. threatening such distribution or publication. A recent New York Criminal Court decision of Kings County focused on the scope of liability under Section 245.15 and also raised the question: threatening Dissemination of an individual’s intimate images without their consent should be a crime under state law.

Inside People vs. Marvel B.215 NYS3d 748 (NY Crim. Ct. Jul. 8, 2024), defendant allegedly texted complainant, presumably a former sexual partner, photographs of herself having oral sex with defendant in a private bedroom. There was no allegation that the photography or sexual acts were non-consensual, but the criminal complaint alleged that the complainant believed the photographs would not be distributed anywhere, had a reasonable expectation of privacy, and did not do so. The defendant was given permission or authority to distribute the images.

The information also claimed that the defendant threatened the complainant that he would distribute the images to all his social media followers and family if he “continued to reject the defendant.” ID. In 752. Based on these factual allegations, the defendant was charged with violating Section 245.15, whose New York City counterpart is NYC Admin. Code §10-180 (“City Code provision”) and Coercion in the Third Degree, Penal Code §135.60(3).
Defendant requested dismissal of all charges, arguing that the information on each charge was apparently insufficient. The court agreed and granted the request.

Turning first to the charge of unlawful dissemination under the state penal code, the court observed that Section 245.15 requires the defendant to disseminate the intimate image “with the intent to harm the emotional, financial, or physical well-being” of the complainant.

Examining the legislative history, the court decided that the main purpose of the law was to criminalize the non-consensual dissemination of sexually explicit images. ringthat is, outside the boundaries of an intimate relationship, regardless of whether the relationship continues.
The complainant had a reasonable expectation of confidentiality that the images would remain between her and the defendant, but sending him the images did not breach that expectation. Therefore, the court held that the defendant’s distribution of the images to the complainant selfEven though it was unintended, it was not the type of unlawful dissemination contemplated by Section 245.15.

The court also ruled that the prosecutor failed to allege how sending the images to the complainant harmed her emotional, financial or physical well-being. Accordingly, the court dismissed the charges under Section 245.15.

The court then held, based on the language of the information pertaining to the crime itself, that the only subsection of the City Code provision for which the defendant was charged was subsection (b)(1), which is disclosure of an intimate image with intent to disclose without consent. Causing economic, physical, or significant emotional harm to the person depicted. This was important because subsection (b)(2)—not charged in the information—criminalizes threatening to violate subsection (b)(1).

Concluding that the defendant was charged only with making an unlawful disclosure under subparagraph (b)(1) rather than threatening to disclose under subparagraph (b)(2), the court dismissed the charges under the City Code provision as facely inadequate for the same reasons. He pleaded not guilty to charges under Section 245.15.

Finally, turning to the charge of Coercion in the Third Degree, the court agreed that the information alleges that the defendant was violent. was threatened If the complainant “continues to reject” her, she will publish and disseminate her intimate photographs. However, the court ruled that to allege this offence, the information must allege that the complainant was “actually coerced into engaging in conduct which she had a legal right to refrain from because of fear of what the defendant would do in response”. 215 NYS3d In 755-56.

Noting that there are no allegations in the information that the complainant was actually involved in this crime, any The court rejected the charge of coercion, following behavior that the defendant had the right to avoid as a result of his threats.

However, the defendant’s request to reject the information in its entirety was accepted and the case was dismissed.

As a matter of threshold, Marvel B. It is important because it underlines that criminal liability does not arise when partners in an intimate relationship share sexually explicit images with each other, even if one partner later regrets participating in and consenting to the production of these images. according to Marvel B. According to the court, sending such images between two original sexual partners is not the kind of “dissemination” that the State Legislature intended to prohibit.

However Marvel B. it also highlights what some see as a lack of reach in Section 245.15. Arguably, the threat of disclosing intimate images to third parties without consent is itself a coercive and damaging act deserving of punishment. However, as noted, while Section 245.15 criminalizes the intentional dissemination and publication of intimate images, it does not criminalize the dissemination or threat to publish such images. Section 245.15’s failure to cover such threats contrasts sharply with the City Code provision. to do Consider such threats a crime, but only in the five boroughs of New York City. It is strange, to say the least, that these threats are only criminalized in New York City, but victims of the same threats are vulnerable elsewhere in New York State.

This apparent inconsistency between Section 245.15 and the City Code provisions did not escape the attention of legislatures. In the spring of 2024, months in advance Marvel B. Following this decision, the New York State Senate passed S. 7881; This bill, like the City Code provision, would amend Section 245.15 to additionally criminalize disseminating or threatening to publish non-consensual intimate images.

S.7881 passed the Senate unanimously but died in the House. While a similar Senate bill is likely to be reintroduced in January when the legislature reconvenes, there is no guarantee it will pass the House.

Potentially expanding criminal liability throughout New York State to include the threat of dissemination or publication raises concerns that should be considered before a new amendment to Section 245.15 is made. For example, the impact of criminalizing these threats on young people is one issue that could be taken into consideration. Many young people are engaging in the act of “sexting,” where explicit images are shared via electronic means, and it is hardly news that young people experience intense emotions and can be prone to extreme emotional ups and downs. Should some guardrails be added to the potential criminalization of a young person’s spontaneous emotional outburst expressed to a former romantic partner, say, in the heat of a traumatic breakup, as threatening to minimize the possibility of exposing him or her to offending? obligation?

In this context, for young people, and perhaps for everyone else, because the threat of disseminating or publishing an intimate image is clearly of a different kind from the actual dissemination or publication (which action can lead to continued dissemination of the image from the moment it is “out there”). While “threats to disseminate or publish cannot do so), perhaps criminal liability for threats should require the nature of the threat to be ongoing or repeated rather than an isolated incident. There are precedents for such an approach. For example, the repeated nature of the action is considered harassment under the New York Penal Code.” is done. See for exampleCriminal Law §240.25.

Additionally, as drafted, S.7881 would subject both the threat of unlawful distribution or publication and the act itself to the same penalties as Class A misdemeanors. However, there may be reasons for making a threat, especially if it is a one-time threat, to result in a more lenient punishment than the act. As discussed, the types of harm resulting from threat and harm resulting from dissemination or publication may differ significantly.

Additionally, having both the threat and the act lead to the same punishment could mean the loss of a potentially meaningful incentive for a threatening person in an emotionally charged situation to back off before attempting to illegally share an intimate image.

Finally, as noted at the outset, the private right of action for the unlawful dissemination or publication of an intimate image protected by Civil Rights Act §52-b may be based on the threat of such conduct even if there is no actual distribution or publication. . This means that the victim of a threat already has some remedies available under the law, which may include injunctive relief, compensatory and punitive damages, and reasonable court costs and attorneys’ fees.

The legislative history of Civil Rights Act §52-b explains that the private right of action is designed “to operate in conjunction” with Section 245.15. New York Bill Jacket, 2019 AB 5981, Sec. 109. However, this does not mean that criminal liability under Section 245.15 should be made the same comprehensive as the remedy available under Civil Rights Act §52-b.

Expanding the scope of criminal liability should always require careful analysis of both intended and potential unintended consequences and consideration of relevant policy concerns, including the protection of potential victims and risks to potential offenders. The questions discussed above reflect some concerns that must be carefully considered before our State Legislature seeks to expand liability under Section 245.15 to include the threat of unlawful dissemination or publication of intimate images.

Bonnie M. Baker Friedman Kaplan Seiler is an advisor to Adelman & Robbins.