New York must rewrite flawed revenge porn law
Unfortunately, New York’s law allows harassers to escape prosecution if they distribute the offending images for any purpose other than an intent to harm the person depicted — including just amusing themselves, entertaining their friends, or attempting to profit from selling the images.
A law intended to protect people from having intimate images and videos shared without their consent has a huge loophole.
With former Gov. Andrew M. Cuomo resigning in disgrace, his persistent denials that he intentionally harassed women are an unconvincing response to Attorney General Letitia James’s report that documented credible allegations of sexual harassment of his employees and others.
As we are all aware, the substance of Cuomo’s denials — that he didn’t intend to harm or harass anyone — is not a valid defense under New York’s workplace sexual harassment law. And it shouldn’t be. Sexual harassment laws do not evaluate conduct from the viewpoint of the harasser and his purpose, but rather from the perspective of the target of the offending conduct. How a state trooper felt when Cuomo put his hands on her body, how any reasonable person would feel, is what matters in the eyes of the law.
Unfortunately, this is not the standard used in all sexual harassment laws. There is a gaping loophole in New York’s so-called “revenge porn” law, which focuses on the intent of the perpetrator. Now is the time for the state Legislature to follow its own example and align its revenge porn law with the standard it set in New York’s workplace sexual harassment laws — by revising the definition of “revenge porn” to eliminate the intent of the harasser. Other states would surely follow.
New York’s groundbreaking 2018 workplace sexual harassment laws expanded protections for women by redefining sexual harassment as conduct a reasonable person would find more than a “petty slight or trivial inconvenience.” It was hailed by advocates, lawmakers and the governor himself as an improved and appropriate standard that focuses on the experience of the victim rather than the harasser’s intent.
In 2019, the Legislature continued to protect targets of sexual harassment in a different forum and passed its first criminal “revenge porn” law. “Revenge porn,” more appropriately called nonconsensual pornography or imagebased sexual abuse, involves a harasser who distributes sexually explicit images of a person without the consent of the person depicted. Because some of these images are obtained in the context of an intimate relationship, this crime has often been referred to as “revenge porn” and results in draconian and life-altering consequences, including humiliation, job loss, alienation by family and friends, and even suicide.
At the time of its enactment, Cuomo noted that “our laws have not kept pace with technology and how abusers can use it to harass, intimidate, and humiliate (women). By criminalizing the publication of revenge porn, we are empowering victims of this heinous act to take action against their abusers.”
Unfortunately, New York’s law allows harassers to escape prosecution if they distribute the offending images for any purpose other than an intent to harm the person depicted — including just amusing themselves, entertaining their friends, or attempting to profit from selling the images. This leaves the vast majority of the targets of this abuse without any recourse, because research shows that as many as 80 percent of these incidents do not involve the intent to injure, harass, or mistreat the person depicted in the image.
Our research into the 48 U.S. jurisdictions that have “revenge porn” laws finds that most effective versions of these laws eliminate the need to prove intent to harm or harass — similar to the way New York’s workplace sexual harassment laws are structured. The focus of these statutes is on the perpetrator’s intent to distribute the image without the consent of the person depicted, which is the true underlying cause of harm.
To be sure, some are concerned that revenge porn laws should be mindful of First Amendment free speech claims, but our research shows that “revenge porn” laws are narrowly drafted so as not to run afoul of any First Amendment claims, and state courts that have considered the issue have upheld the statutes that came before them.
Just as Cuomo’s intent to harm is irrelevant to the trauma he caused, the state Legislature should use this difficult time to update our “revenge porn” laws. By sending Gov. Kathy Hochul a law to sign that removes the intent to harm from the “revenge porn” statute, the state can show that it is serious about turning the page on the Cuomo administration and protecting women.