San Francisco Chronicle - (Sunday)
Penalties rarely match damage of revenge porn
A man who posted nude photos of his exgirlfriend on social media refused to take them down unless she had sex with him again.
A woman who had switched cell providers was sent nude photos of herself after a mobile-phone store employee swiped them from her old phone.
Another woman found a video of herself posted on a porn site, with nearly 30,000 views. When she asked her ex why he uploaded it — in a call recorded by police — the man admitted he wanted to hurt her in the “heat of the moment.”
The cases are among the dozens prosecuted in the Bay Area since 2013, when California criminalized the sharing of private sexual images of a person without their consent.
Victims of the crime — referred to as revenge porn — speak of the shame they feel around friends and family and crushed career opportunities, court records show. In some
cases, victims took their own lives.
But some victim advocates say that even when a perpetrator is convicted, the punishment rarely matches the harm caused. A Chronicle review of Bay Area revenge porn cases found that many charges are eventually dismissed, and most of those convicted face a few days in jail or probation.
In the process, victims must bare their souls and face the possibility of private, intimate pictures being made public again, as evidence in a trial.
Now, nearly a decade after the state’s move, congressional legislators have revived an effort to pass a similar law at the federal level. But California’s experience reveals that such measures can have limited impact, depending on how they’re written, according to some advocates and prosecutors.
“A perpetrator can do this 1,000 times — to the same victim, to different victims — and it will always be a misdemeanor,” said Oanh Tran, an assistant district attorney in Santa Clara County. “I find that to be extraordinarily incongruent with the harm that is caused.”
Yet boosting penalties for any type of crime may be a tough sell at a time when many voters are embracing criminal justice reforms. California has for years worked to unwind tough-on-crime laws that swelled prison populations.
The federal proposal, called the Shield Act, is championed by San Mateo Rep. Jackie Speier, a Democrat who has focused on advocating for victims of abuse and assault. Vice President Kamala Harris, who prosecuted the state’s first revenge porn case as California’s attorney general, previously sponsored the bill as a senator.
Speier said the legislation would improve a patchwork of laws in 48 states and D.C. and address deficiencies in California’s law. Nonconsensual pornography is an internet-enabled crime that transcends state boundaries, Speier said, making a federal statute all the more important.
The proposed text differs in important ways from the California law, including by not requiring proof of victims’ distress and by making the crime a felony.
The federal proposal would ban the sharing of intimate photos “with knowledge of or reckless disregard for” a lack of consent and a reasonable expectation of privacy, with an exception for matters of public concern. Convicted perpetrators would face up to two years in prison per victim.
The law could also help victims get their images taken down or limit their spread, because internet companies must keep content that is illegal under federal law off their sites.
“This is a hard bill not to appreciate,” Speier told The Chronicle. “We owe it to victims to protect them and to criminalize this conduct.”
But the bill’s future is uncertain. Speier has been introducing it for years, and it previously passed the House as part of a reauthorization of the Violence Against Women Act, or VAWA. But the Senate did not take up that version, and the Shield Act was ultimately left out when VAWA was reauthorized this year.
While the bill has bipartisan support, it’s unclear whether a narrowly divided Congress will get to this legislation in a midterm election year. Speier is retiring at the end of the term.
To assess the California law’s impact, The Chronicle requested statistics from all nine Bay Area counties on cases prosecuted since the law went into effect in October 2013. Those statistics showed prosecutors have leveled the revenge porn statute in at least 190 cases, with counties ranging from a single charge to several dozen.
Santa Clara County filed charges most often, in 66 cases. Alameda County said it had 25. San Francisco prosecutors said police had referred two cases to them, and that they charged the crime in those cases and five additional ones. Napa prosecutors said police had brought seven cases and that they filed the charge in one of those. There were 12 in Solano, 25 in Contra Costa, 41 in San Mateo and 13 in Sonoma counties. Marin County did not respond to the request for data.
Dozens of the cases are pending, and many ended without a conviction for revenge porn. Those found guilty of the charge were typically sentenced to a handful of days in jail or a period of supervised probation.
The man who attempted to extort his ex-girlfriend for sex was sentenced to 10 days in jail. The cell phone store employee got one day in jail and probation. The man who uploaded his ex’s video to a porn site pleaded no contest and has yet to be sentenced.
In 2013, then-California Gov. Jerry Brown signed the first-ofits kind bill. Since then, legislators have passed amendments intended to strengthen the law, including a 2021 bill signed by Gov. Gavin Newsom, that extended the statute of limitations from one year after the image was posted to one year after the victim realized it was posted.
Still, some advocates and prosecutors say failings in California’s law made it less effective.
“California was one of the first states to move during a new wave of reform, and that first law was awful,” said Mary Anne Franks, a law professor at University of Miami and president of the Cyber Civil Rights Initiative, a nonprofit that works to combat nonconsensual pornography and other online abuse. “They were trying to do a good thing, but the first law didn’t even apply to selfies.”
The law, though revised, still requires that victims prove the sharing of their images caused them distress. “That means standing up in court and speaking about how you were suicidal or can’t get a job or can’t sleep at night, and that risks re-traumatization,” Franks said.
And it remains a misdemeanor, which limits the potential punishment and, prosecutors said, makes it more
difficult for investigators to obtain search warrants for electronic communications that might prove the misconduct. Currently, first-time offenders can be sentenced to a maximum of six months in jail.
Franks, who favors a federal bill, said, “I worry that there’s a certain veneer to the evolution here, where it looks like we’ve made this tremendous progress, but if you look at the actual state statutes on this, they’re not that strong.”
Franks’ concerns are echoed by some prosecutors. Santa Clara County District Attorney Jeff Rosen said he will co-sponsor a state bill this year that would make revenge porn a “wobbler” offense — prosecutable as either a misdemeanor or a felony.
“One thing that I’ve noticed in the Legislature over the last several years,” Rosen said, “is that women’s issues are sacrificed at the altar of criminal justice reform.”
In Santa Clara County, two teenage victims of revenge porn took their own lives.
In February, Ryan Last, a senior at Sobrato High in Morgan Hill, died by suicide after a scammer tried to blackmail him with a risque photo he sent, Last’s mother told KNTV. Rosen’s office said the case is under investigation.
In 2012, Saratoga High student Audrie Pott, 15, hanged herself after being sexually assaulted by three boys and discovering that nude photos of herself were posted online.
Her mother, Sheila Pott, supports the push for a federal law. “It’s educating everyone from when they’re very young that they don’t engage in that type of behavior, and that they know there’s consequences,” she said in an interview.
Tran, the assistant district attorney in Santa Clara County, said that even though the crime’s statute of limitations has been eased, the one-year window may still close before investigators can build a case. Sometimes, out of embarrassment, victims don’t come forward right away.
Alameda County District Attorney Nancy O’Malley, who sponsored the bill that expanded the law’s statute of limitations, said the cases remain difficult to prosecute, and “not because the facts aren’t good.” If a victim chooses to move forward, she said, the same images that spurred the case can be entered into evidence and publicly viewed in a courtroom.
“It’s a real ask for victims to be brave enough to testify about that,” O’Malley said, noting that many cases are dismissed because a victim decided not to cooperate. “You just want to become invisible to everybody.”
And unlike “Jane Doe” victims of sexual assault, who are legally allowed to keep their name out of court filings, there are no such guarantees for victims of revenge porn, O’Malley said.
She said evidentiary rules could be changed to, for instance, black out portions of an image or require anonymity for victims who want it. “I do think that if we were more protective of the victim, we might see more victims coming forward,” she said.
Few oppose criminalizing nonconsensual pornography.
But aspects of the legal fight have raised concerns, including from free-speech advocates.
David Greene, a senior staff attorney with the Electronic Frontier Foundation, said the tech-focused civil liberties group wants to ensure there is an exception in nonconsensual pornography laws for matters of public interest.
“Whenever there’s a law that’s going to restrict speech, we want to make sure that it does so consistent with the First Amendment,” Greene said. “We haven’t been dismissive and said there should never be a revenge porn law. We’ve said they should satisfy strict scrutiny.”
Another complicating factor is that the crime can skew young; many of the defendants are teenagers. With emerging science showing that juvenile brains haven’t developed enough to understand the full impact of their actions, many feel a felony charge is too severe.
Danielle Harris, a managing attorney at the San Francisco Public Defender’s Office, said it is “dangerous and foolhardy” to increase penalties for harmful behavior without evidence that the punishment works to prevent it.
“Systemic responses should instead take into account the needs of individual survivors of harm and look to educate offenders about the harm they have caused in order to promote true accountability,” she said.
Franks, the University of Miami law professor, said the goal of such laws must be to deter the behavior in the first place.
“I’m very sensitive to critiques of the criminal justice system, the concerns about mass incarceration,” Franks said. “It’s a question of whether or not this particular abuse deserves the protection of the criminal law. … What we have seen when it comes to these kinds of crimes, the fear of prosecution, particularly of federal prosecution, is a really powerful motivator.”