TW: Sex Crimes, Sexual Abuse
Revenge porn, often referred to as “non-consensual pornography” or “image-based sexual abuse” (“IBSA”), is a sex crime of the digital age. Combining tort law with criminal issues of privacy, defamation, extortion, harassment and sexual violence, revenge porn and other digital sex crimes like sextortion are rising precipitously with the advent and accessibility of new technologies.
Most states criminalize revenge porn, but Massachusetts and South Carolina have no laws against image-based sexual abuse—though Massachusetts could pass one this year. While victims can occasionally use harassment statutes to pursue civil action against perpetrators, prosecution is more complicated.
Due to the complex nature of these crimes and aspects of the state criminal laws against them, several issues arise when prosecuting non-consensual pornography or image-based sexual abuse, including narrow definitions of pornography, moderate penalties or difficult mens rea requirements.
Narrow definitions of pornography.
Many state nonconsensual pornography laws, like Virginia’s, require a state of nudity to qualify as pornography. However, sexually explicit images do not necessarily include nudity, such when individuals engage in sexual acts while clothed. This narrow definition of pornography hinders prosecution of these crimes by eliminating what fits the attendant circumstances on a mere technicality. The Cyber Civil Rights Initiative, an organization that advocates for victims of image-based sexual abuse, has a draft model state law which recommends that nonconsensual pornography be defined more broadly than simple nudity.
Moderate penalties.
Many states’ laws impose moderate penalties image-based sexual abuse crimes, which may reduce prosecution rates. Of the 48 states and the District of Columbia that have a law on the books criminalizing image-based sexual abuse and related crimes, only 11 treat the first offense as a felony, in contrast with many similar sex crimes prosecuted as felonies across the board. Law enforcement resources often prioritize violent crime, and creating or sharing nonconsensual pornography is only a misdemeanor in most states, thus not qualifying as a traditionally ‘violent’ crime. Image-based sexual abuse, as discussed below, is resource-intensive to investigate and prosecute. In some states, including Virginia, more money is allocated at the state or county level for addressing felony crimes, instead of misdemeanors. Thus, lower penalties for image-based sexual abuse reduces can contribute to the lack of resources available to prosecute these crimes.
Complexity of the crime.
The lack of resources is compounded by the fact that revenge porn and image-based sexual abuse are often complex crimes. Often, local law enforcement and prosecutors lack the resources or ability to pursue perpetrators in different states. As there is no federal crime against revenge porn, local law enforcement cannot rely on federal support for these crimes in pursuing perpetrators outside their jurisdiction. Domestic violence and similar crimes—such as revenge porn—are considered lower profile, and these cases may be assigned to less-experienced prosecutors with higher caseloads despite their complex and technological nature. Making prosecution and detection even more difficult is the increase of using artificial intelligence (“AI”) as a means of creating nonconsensual pornography—referred to as “deepfakes.” According to Sensity AI, 90-95% of deepfakes online are nonconsensual pornography, almost all of it depicting women. Only some states, such as Virginia, criminalize the creation of deepfakes as part of their laws against image-based sexual abuse. Regardless, the technological aspect of this crime adds another dimension of difficulty for prosecutors and investigators seeking to bring charges.
High mens rea standard.
One of the biggest hurdles for prosecutors is the mens rea requirement present in many state laws criminalizing non-consensual pornography. At least 19 states, including Virginia, North Carolina, and Washington D.C., require the intent to harass or harm as part of establishing guilt. Laws with a mens rea requirement that include intentional harm or harassment often seriously hamper the prosecution of cases of image-based sexual abuse as the motivation of perpetrators are often hard to prove. Further, a 2017 study by the Cyber Civil Rights Initiative found that 79% of perpetrators say they “didn’t intend to hurt the [victim].” The high mens rea standard in many of these laws hamstring prosecutors and is yet another way that the prosecution of image-based sexual abuse proves to be difficult. In their model state law, the Cyber Civil Rights Initiative recommends that the mens rea be defined using a recklessness standard—a conscious disregard of the risk of harm.
Although there are calls for more prosecution for revenge porn, there is also pushback on tightening revenge porn laws to close some of these loopholes. Through the Free Speech Center at Middle Tennessee State University, Dr. John R. Vile recently published a blog positing that some laws criminalizing revenge porn may not survive First Amendment tests — however, so far, five different laws criminalizing the non-consensual dissemination of intimate images have survived constitutional challenges. Additionally, the American Civil Liberties Union opposed a 2017 bill to make nonconsensual pornography a federal crime. However, prosecutors and victims’ rights advocates have largely advocated for stronger laws to combat and deter nonconsensual pornography and image-based sexual abuse.
Practitioners can expect a continued rise in cyber sex crime, including revenge porn, image-based sexual abuse, sextortion and AI-created sex abuse materials. While some state laws have changed to address some of the challenges with prosecuting these crimes, reforms can still be made to broaden definitions of pornography, bring penalties in line with other sex crimes, allocate more resources to investigation and prosecution of cyber sex crimes, and lower the mens rea standard from requiring intent to a mere recklessness standard. These changes will provide more guidance to prosecutors and law enforcement confronting and prosecuting image-based sexual abuse. Furthermore, a federal law against image-based sexual abuse would take the onus off under-resourced local district attorneys’ offices and more evenly distribute the responsibility of prosecuting these crimes.