Let’s get this out of the way: “Revenge porn,” or the act of sharing private, nude images of a person without their consent, is an odious, vile thing. It’s not the fault of the person who allowed the photos to be taken, it’s the fault of the person who chooses to share the photos. And, as courts found last month, it’s not something that should go unpunished. A Houston woman was awarded $500,000 in damages after photos that she had shared with her ex-boyfriend ended up posted, maliciously and with ill-intent, on a number of websites. ABC 13-KTRK in Houston explains:
“I loved him. I thought I could completely trust him,” said a woman we’re just identifying as “Rosie.”
Rosie’s young long-distance romance lasted seven years. For part of it, she shared intimate moments with photos and Skype chats.
“If I ever sent him a picture, I asked him to delete it right away. And he promised me that he did,” she said.
Only after their breakup did Rosie learn that he didn’t. He recorded those chats, without her permission.
“He started threatening me, blackmailing me with the pictures and video, which I didn’t know he recorded,” Rosie said.
Videos were uploaded to YouTube and other sites. Her private moments became very public.
“He would update me on how many people had seen it, or downloaded it,” she said. “It’s humiliating. It’s devastating.”
There’s no law against revenge porn in Texas and, without a crime, police couldn’t help Rosie.
Police may not have been able to help Rosie, but the legal system still did: her ex-boyfriend was punished in civil court, and ordered to pay half a million dollars in damages, a life-changing amount of money as punishment. To this point, it’s the largest verdict ever received in a revenge porn case—though it will remain to be seen if this amount becomes the ceiling or the floor.
Smart money might have it on the floor, though—it’s unlikely people (mostly men) who share photos of their exes (mostly women) without consent and out of malice are going to be looked upon more generously by our courts than they are right now, which raises a question: If the civil courts are capable of addressing and providing justice in revenge porn cases (as much as is possible, anyway, given that getting nude images off of the Internet is like trying to get pee out of a pool), does revenge porn need to be criminalized in Texas at all?
Revenge porn is currently illegal in California and New Jersey, while legislation pends in other states. According to KTRK, “Two state lawmakers are working on a bill that would make revenge porn illegal in Texas,” as well. But laws like that are frequently imprecise in how they’re written, and it’s not hard to imagine circumstances in which they created more problems than they solved. Civil courts, which are more flexible, are able to look at a case like Rosie’s and determine that she was clearly a victim of someone who acted out of malice, and both punish the person who victimized her and offer her some degree of restitution.
Criminal courts, on the other hand, deal strictly with laws that are meant to be applied evenly. If it’s illegal to share nude images that a person sent you without their consent, what would that mean for, say, a young woman on the receiving end of photos like the ones Anthony Weiner was keen to share? If a woman photographs a flasher and posts it to a neighborhood listserve to warn others to be on the lookout, would she be committing a crime?
For now, what we do know about revenge porn in Texas, as it relates to the law, is that it is not going unpunished. The next time someone decides to share his or her ex’s private photos online, he or she will do so with a precedent already established that such an action can cost half a million dollars.
The legislature will eventually determine whether that’s an effective enough deterrent, or if criminal charges need to be on the table. The Houston Chronicle posed that question to criminal defense attorney Mark Bennett, who suggests that it’s something the state should dive into cautiously.
“We don’t want to rush off and unprotect a certain category of speech because that always has unforeseen collateral consequences,” Bennett said. “Once you open that particular door, you don’t know what you’re letting in.”
He noted that Texas has a law against improper photography, which revenge porn could be prosecuted under.
“Let’s try the laws that are already there, let them play out and find out if they’re unconstitutional,” he suggested.
Ultimately, of course, any punishment is likely to fall short of the outcome that the victim of revenge porn wants, which is probably for the photos to have never been posted in the first place.
