Governor Cuomo Signs Revenge Porn Law
Publishing private photographs with the intent to harm another person is now illegal in New York.
“Our laws have not kept pace with technology and how abusers can use it to harass, intimidate and humiliate intimate partners,” the governor declared in a signing ceremony. “By criminalizing the publication of revenge porn, we are empowering victims of this heinous act to take action against their abusers and showing them a path to justice,” he added. The new law imposes criminal penalties for revenge porn, and authorizes civil suits against websites that host these images. No other state revenge porn laws include a civil claims authorization.
Advocates insist that revenge porn harms the reputations of victims and often causes significant employment and other hardships.
Elements of the Offense
Anti-pornography laws are often very vague, because pornography is subjective. In a 1964 case, Supreme Court Justice Potter Stewart famously wrote that although he could not define “pornography” in a legal sense, “I know it when I see it.” The subjective nature of the law has evolved some since then, but it has not evolved very much.
Some of the lines are already blurry. Add a powerful emotion like revenge, and consider the fact that there was probably some alcohol involved when the pictures were taken, and the picture becomes even less clear.
The result is a law which forbids the “dissemination or publication of an intimate image when done with the intent to cause harm to the emotional, financial, or physical welfare of another person and when the image was taken with a reasonable expectation that the image would remain private.” Such a rambling and uncertain law often invokes the vagueness doctrine. Laws are unconstitutionally vague if:
- They do not specify what conduct is punishable, or
- A reasonable person cannot read the law and determine what conduct is illegal.
Vagueness is often a very effective defense in these kinds of cases. The revenge porn law mentions neither “revenge” nor “pornography.” Lawmakers attempted to clarify the law, by adding some definitions like what constitutes an “intimate” image. Nevertheless, there is a lot of grey area in this law. It will be interesting to see if it survives judicial scrutiny.
Sex Offender Modification and Removal Petitions
A conviction under the revenge porn law could mean up to one year in jail or three years of probation. More importantly, a conviction probably places the defendant on New York’s sex offender list.
Like many jurisdiction, the Empire State has a multi-tier registration system which separates violent sexual offenders from pornography possessors. So, a revenge porn conviction would probably mean a Level One designation. So, these people need not register publicly, but law enforcement keeps close tabs on them, and other government workers have access to the information as well.
However, the Level One designation is not a gimme. If the facts were particularly bad, or the defendant had any prior criminal history in this area, a Level Two designation is probably forthcoming. These individuals must publicly register, and as a result, they face significant employment, residency, and other obstacles.
After one year, a defendant may file a request for modification. Based on the current facts, such as a favorable psychological evaluation and no further infractions, the judge may reduce the requirement from Level Two to Level One. The state may also ask for an increase once a year.
After 30 years, Level Two offenders may petition for removal. The judge usually grants these petitions if the facts are reasonably favorable and the defendant is not a sexually violent offender, sexual predator, or predicate sex offender.
