Technology is amazing. It has allowed us to send money to friends at the push of a button, hail a cab in a few minutes (and then write reviews), keep in touch with old classmates, and share music from around the world. But, it can also cause people a lot of hardship.
Michelle Carter used text messages to persuade the mentally ill boyfriend she had met infrequently to kill himself. She was sentenced to a short jail-time and fined for involuntary manslaughter. Eric Bolling of Fox News has just been suspended after reports of him texting ‘unsolicited photos of male genitalia’ to three female colleagues surfaced. Anthony Wiener sent lewd photos of himself, including allegations of sexting with a 15-year old girl. In May of 2017, he reached a plea bargain with federal prosecutors, pleading guilty to a single charge of transferring obscene material to a minor. And finally, Rob Kardashian leaked nude photos of his estranged wife after they had a fight and went off on a Twitter rant about her. Some have called for him to be prosecuted under California’s ‘revenge porn’ laws, but it can be difficult for the state to go after instigators of these crimes – although it is becoming easier every day.
Michelle Carter’s case is the first of her kind. Most state laws would not include culpability for a third party to be held responsible for another’s suicide, particularly if they were not physically present or able to put them under duress. The ripple effect of this case will be fascinating, as courts can now rely to some extent on this precedent, rather than having to wait for individual legislatures to submit to the somewhat laborious and time consuming process of creating law.
Eric Bolling will probably not face any criminal charges – of course, he is guilty of sexual harassment if what he did was true. But the facts indicate that he sent these photos several years ago, meaning the statute of limitations on anything might be expired. States have a continuum of laws dealing with unsolicited sexting – either rapidly evolving, or completely silent on the subject. Only 20 states have actual ‘sexting’ laws on the books. However, states do generally criminalize sexting as it pertains to minors, as seen in Anthony Wieners case. Most have been able to charge defendants with charges of child pornography.
Revenge porn charges are one of the latest iterations of law that has been passed in an effort to keep up with the constantly changing environment of digital communication. Revenge porn is basically any distribution or transfer of someone in a sexually explicit position without their consent. Even if the video is made with the knowledge and consent of the victim, if it was distributed without their permission, this is a crime.
Additionally, using the possession of the video as blackmail against the victim to get them to do something is also a crime. Over thirty-four states in the United States have passed laws criminalizing revenge porn. Some of the biggest prosecutions have been against operators of websites that allow users to post revenge porn. Former AG of California, now senator, Kamala Harris, prosecuted the operator of UGotPosted with 31 felony counts and sentenced to 18 years in prison for his role in the propagation of revenge porn. Robert Kardashian’s actions against his wife, known as Blacc Chyna, have caused the laws to be re-examined.
In California, where he could be prosecuted, the law is one of the earliest versions of revenge porn in the country. Under it, there are several elements which must be proven in order to secure a conviction, many of which are challenging. The images that he posted must have been taken with the understanding by both parties that it would remain confidential indefinitely. The victim must have been identifiable online (which is true) and suffer emotional distress. Some have argued that this element would be difficult for his wife to prove, in light of her former career as a stripper and the fact that many photos exist of her naked. However, this would likely not make such a big difference, particularly if these exact photos were taken with the understanding they would not be distributed. The defendant must have had the intent to break the law and cause harm.
The Kardashian matter, if brought to suit, would be a significant case in the context of revenge porn prosecution, and would outline either the failings and successes of the current law in place. Regardless, courts and legislatures will continuously struggle with matching criminal acts under current criminal statutes – a pattern that is likely to continue for the time being.