Law offers few options for victims of ‘revenge porn'

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Nico Savidge
Tuesday, November 5, 2013

JANESVILLE—The woman's boyfriend had threatened to do it.

“Say anything else to me, and I'm going to post these pictures on Facebook,” she said he told her, referring to a collection of nude cellphone photos she had sent him when they dated.

On Oct. 20, he made good on the threat, and the Janesville woman—who asked her name not be used, in part because she fears retribution from her ex—became a victim of what's known as revenge porn.

She went to the police later that day. When asked about the case, however, authorities gave an answer countless other victims have heard: What happened isn't a crime.

“There's no law that addresses it, and it's not a violation,” Janesville police Lt. Keith Lawver said.

Revenge porn stirs up a litany of 21st century issues—a modern dating scene in which men and women think little of swapping pornographic photos and video, a culture prone to over-sharing online, and the inability of law to keep pace with technology.

“Digital media has shown that law is slow in catching up to the problems we cause for each other with these new tools,” said Kathleen Culver, a professor at UW-Madison and social media expert.

The process often starts when men and women in relationships share nude images from cellphone cameras with their partners.

In the midst of a bad fight or breakup, however, jilted lovers have been posting the photos on social networking sites such as Facebook, or to pornographic sites specifically dedicated to revenge porn.

It's a felony to take a nude photo of someone without his or her consent in Wisconsin, and punishments can reach up to 3 years in prison.

Revenge porn doesn't fall under that law, though, because victims consented to images being taken in the first place and might have even taken them.

The Janesville woman and her friend flagged the photos as inappropriate, and Facebook took them down after an hour. The site's rules ban the posting of pornographic content.

Her boyfriend's profile had hundreds of friends, though, and even that one hour was plenty of time for mutual acquaintances to see the pictures and post comments joking about them.

“I just felt so helpless, that I couldn't do anything about it,” she said.

Police forwarded the woman's case to the district attorney's office, but officers did not recommend any charges. More than two weeks after the photos went up, court records show the boyfriend has not been charged.

Legislators have only recently recognized the problem, which advocates say shames victims and can destroy reputations. Two states have criminalized the practice.

A bipartisan bill in the state Assembly would change Wisconsin's law, making it a misdemeanor to reproduce, distribute or publish nude photos without consent.

“Consenting to an image being taken is not the same thing as consenting to an image being distributed,” state Rep. John Spiros, R-Marshfield, said at a hearing on the bill.

State Sen. Leah Vukmir, R-Wauwatosa, said existing law only offers “a legal maze of inadequate options” for victims.

Someone who finds images posted online without consent has some legal options, Culver said.

He or she could sue in civil court claiming harm from the public disclosure of private information or emotional distress, Culver said. Victims who took photos later posted without permission can sue under copyright law, she said.

Still, those options put “all the onus on the victim,” Culver said. Criminalization brings the weight of prosecutors and law enforcement.

But even that might not stop the practice, she said.

“A spurned boyfriend isn't going to stop and think about if this is a state statute before he shares it with all the guys on his football team,” Culver said.

And criminalizing revenge porn could be problematic itself, she points out.

One oft-cited example of photos being shared without the subject's consent was that of former New York Congressman Anthony Weiner, Culver said, a case in which there might have been a public interest in having an elected official's private photos distributed.

For now, though, what happened with the Janesville woman's photos doesn't violate any of Wisconsin's criminal laws.

“Until that time, people need to think ahead and think of the ramifications of the things they do now,” Lawver said.

The woman had similar advice for people in relationships thinking about taking nude photos.

“Just don't do it,” she said.

And while Culver agreed men and women should not take the photos to begin with, she also said we shouldn't absolve the people who post them out of anger.

“We have a responsibility to each other not to engage in this kind of damaging behavior,” Culver said.

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