In California, distributing sexual images or video of another person without consent is a crime. This may include a former boyfriend, girlfriend, or romantic partner who records sexual acts and later releases them to get revenge or embarrass the other person. Even if the other person consents to take pictures or video at the time, they may not consent to distribute the images to another person or posting them online.
Sometimes called “revenge porn,” the individual who posts or distributes nude or sexual images of another person can face criminal charges, including the possibility of jail time. If someone is falsely accused of revenge porn, the accused needs to fight back against a possible criminal record. Talk to your experienced East Bay criminal defense attorney to understand your rights.
California Revenge Porn Statute Under PC 647
Under California Penal Code 647(j)(4), it is a crime to commit the following act:
“A person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.”
Revenge porn is a type of disorderly conduct charge, like public intoxication. Disorderly conduct is generally charged as a misdemeanor in California.
Penalties for Revenge Porn in California
The penalties for a conviction for revenge porn include up to 6 months in jail or probation, and a fine of up to $1,000. However, the penalties may increase for additional violations, including revenge porn on multiple occasions or involving multiple people.
A second or subsequent violation can be punishable by up to a year in prison and a fine of up to $2,000.
In addition to criminal charges, the alleged victim may be able to file a civil lawsuit against the defendant for money damages. Even if an individual is found not guilty, the standards for a civil lawsuit have a lower threshold.
What does it mean to intentionally distribute images?
Intentionally distributing images includes personally distributing images or requesting or causing another person to distribute the images. Giving the images to someone else to distribute could be considered intentionally distributing images.
Distributing images under California's revenge porn laws includes most types of electronic distribution. This includes texting, email, posting to social media, or uploading to image websites.
What kinds of images are included?
Revenge porn images include showing an “intimate body part” of another identifiable person, or an image of someone engaged in a sexual act. Intimate body parts include any portion of the genitals, anus, or female breasts, either uncovered or clearly visible through clothing.
Exceptions to Revenge Porn
There are certain exceptions to “revenge porn” allegations, where distributing an image of an intimate part would not be a crime. This includes:
- Distributing an image made in the course of reporting an unlawful activity;
- Distribution in compliance with a court order or subpoena for use in a legal proceeding; or
- Distribution made in the course of a lawful public proceeding.
Related Criminal Charges for Revenge Porn in California
When someone posts naked images or sexual pictures of another person, they may also be violating other crimes in California. If the images are of someone under the age of 18, the individual could be charged with distribution of child pornography or possession of child pornography. Even if both people involved were under 18, they could still face charges.
Recording images of someone without their knowledge or consent could be a separate criminal charge. For example, hiding a camera in a bathroom or taking pictures through someone's window could be an invasion of privacy or peeking while loitering. Even if the individual never distributed those images or showed them to another person, peeking in on someone who has a reasonable expectation of privacy can be a crime.
If someone has naked images of another and threatens to release them unless they agree to do something, or in exchange for money, could be considered blackmail or extortion. This is sometimes known as “sextortion.”
Defenses to Revenge Porn Charges
There are a number of possible defenses to revenge porn charges. Revenge porn charges generally require a showing of emotional distress. If the other person shown does not care about someone posting their image or liked that the image was posted, it may not be revenge porn even if there was no consent to distribute the images.
Consent may also a defense to revenge porn charges. If the person depicted said it was okay to send out a nude image to someone or post it online, distributing the image would generally not be a crime. However, if the individual changed their mind before the image was distributed and communicated this change to the other person, it may have changed whether the individual consented to distributing the nude image.
Another potential defense to revenge porn charges includes showing that the other person was not identifiable from the image. For example, if the face was not shown or blurred out, the image may not have another identifiable person required for porn charges. However, including the person's name or sending out an image to someone familiar with the person's body or identifying marks may still be considered revenge porn even if the face was not clearly shown.
Talk to your experienced Alameda criminal defense attorney about the best defenses available to fight against a criminal conviction for revenge porn in your case.
East Bay Revenge Porn Attorney
East Bay lawyer Lynn Gorelick has more than 30 years of criminal defense experience defending clients facing criminal charges, including revenge porn or disorderly conduct. She understands how to approach the individual facts of each case for the greatest chance of success. If you or a loved one is facing criminal charges in Alameda or Contra Costa County, contact East Bay Criminal Defense Attorney Lynn Gorelick.
