Ray Allard and Jennifer Martin-Romme
You would think a piece of legislation prompted by the death of Prince would not have anything in common with a bill addressing pornography. You would be wrong.
Both bills had a star-studded road to the legislature. Both are opposed by the Motion Picture Association of America. And both have implications for free speech.
Minnesota House File 2741 criminalizes “revenge porn”—the nonconsensual dissemination of private sexual images. Hollywood actress Jennifer Lawrence is probably the most famous revenge porn victim, when her cell phone was hacked in 2014 and naked photos of her spread across the Internet. “Every single thing that I tried to write made me cry or get angry,” Lawrence said of her delay in issuing a public response to the hacking. “I started to write an apology, but I don’t have anything to say I’m sorry for...It is not a scandal. It is a sex crime.”
Images used as revenge porn are sometimes created consensually, or taken by the victim, then posted by a partner during a fight. In other cases, the images are recorded without the victim’s knowledge, or they’re obtained by hacking. Sometimes, like in the Steubenville rape case, the assailants videotape themselves sexually assaulting a victim and use the pictures to show the world.
Websites like MyEx and Pink Meth specialize in posting explicit images without the subject’s consent, typically accompanied by identifying information, screenshots of her Facebook profile, and vulgar insults.
“It’s terrible,” says Mark Anfinson. “ It causes, in some cases, extreme emotional and psychological trauma...The trouble comes in defining ‘pornography.’ When a law is passed that prohibits egregious behavior, the focus tends to be on the worst form of that expression.”
So far states with revenge porn laws on the books have not proven to be very good at definitions. Georgia’s law defined nudity so broadly (including covered genitals) that it outlawed sharing photos of someone in a swimsuit.
Yet Georgia had no public interest exemption, which meant the women who outed Congressman Anthony Weiner for sending them lewd images would have been committing revenge porn—against him.
Arizona’s law defined consent so narrowly that it accidentally made felonies of the photos from Abu Ghraib, footage of the Holocaust, and consensually shared selfies.
But Representative John Lesch (DFL-St. Paul) who introduced Minnesota’s current revenge porn bill, is confident that his version strikes the right balance. “It doesn’t address pornography...Pornography is already illegal.”
HF 2741 “makes it a crime to intentionally disseminate an image of another person depicted in a sexual act or whose intimate parts are exposed when the person is identifiable; the actor knows or reasonably should know the person did not consent to dissemination; and the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy.”
Lesch has been adamant about excluding an “intent to harass” element to the crime, which is why the Motion Picture Association opposes the Minnesota bill, charging in a letter to the House last April that it “could limit the distribution of a wide array of mainstream, Constitutionally protected material, including items of legitimate news, commentary, and historical interest.”
Lesch is dismissive of this criticism, suggesting that the entertainment industry may be the reason why California has a particularly toothless revenge porn law, which excludes all self-recorded images, even if they are obtained and/or distributed nonconsensually.
“The problem here,” says Anfinson, “which is an overwhelming problem in my opinion, and one that makes the whole effort futile, is that a state and its legal framework only apply to that state...The courts in Minnesota and the law enforcement agencies only have jurisdiction in Minnesota. So if the person who posts revenge porn is in any other state or country, there’s no jurisdiction. They can’t be prosecuted under Minnesota law. Even if they could be, there’s no jurisdiction over them, and that problem is significantly compounded by the fact that, if revenge porn is posted on the web, where is the server? Where is the person posting it? The Internet doesn’t tell you that.”
But Lesch insists that jurisdiction will not be a problem. “It will work the same as if you’re a victim and you have a no-contact order, and he calls you from Duluth, but you’re in Minneapolis.”
Specifically he outlines four scenarios in which revenge porn could be prosecuted in Minnesota:
•If the victim resides in Minnesota;
•If the perpetrator resides in Minnesota;
•If the offending material appears on known Minnesota servers (e.g., the University of Minnesota); or
•The offending material is viewed by someone in Minnesota. “Let’s say the victim’s sister is in Minnesota and discovers it, but the victim lives in Wisconsin. It could be prosecuted if either the victim or perpetrator is in Minnesota, or if the victimization occurred in Minnesota.”
Although little research yet exists on revenge porn, the primary study on it so far, by the Center for Innovative Public Health Research, suggests that, as a form of domestic violence, the threat of releasing explicit images is used far more often than actually releasing them.
Ten percent of women between the ages of 15 and 29, and 17 percent of people who identify as gay, lesbian, or bisexual had experienced a partner threatening them with revenge porn. Only two percent of both men and women overall actually had someone post an explicit image of them, and among those, 57 percent were not threatened with it first. Twelve percent were hacked.
Lesch acknowledges there is an element to the cruelty of revenge porn—to the acceptance of inflicting humiliation on women—that the law cannot address. “I was working with a Muslim woman. She’s fully Americanized. She’ll drink moderately. She doesn’t wear a headscarf. But she comes from a very strict culture. Well, she put up photos of herself on Facebook in a dress. Just a normal, modest dress. A man that she had rejected hacked into her phone and disseminated them. Her family found out.”
The fact that this was not revenge porn by law didn’t detract from the woman’s shame nor from the reality that a man would resort to humiliating her for telling him no. “We just have to draw the line someplace, and that line was heavily debated as we struggled with this bill.”
Click here to read about Minnesota Senate File 3609, the "PRINCE Bill."