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It’s anyone’s worst nightmare (except possibly Kim Kardashian’s) – waking up one day to discover nude photos of yourself posted all over the internet accessible by millions of people world-wide. With just the click of a mouse, your most personal and private photos or videos are accessible to your friends, family, neighbors, co-workers and boss. And making it worse, the images were posted along with your name, address, employer and links to your social media profiles. You then learn that the images were posted by a former boyfriend or girlfriend.  Unfortunately, this situation is becoming more and more common and as you can imagine, the damage to the victim can be devastating. Victims often face strains to personal relationships when family and friends view or receive the images. They may lose out on a job opportunity when the prospective employer researches them online. Sadly, one study showed that approximately half of revenge porn victims consider suicide due to the negative repercussions of the postings.

But what can be done? Certainly, revenge porn victims could file civil lawsuits against the ex-boyfriend or girlfriend who posted the photos. But civil litigation can cost tens of thousands of dollars and if the victim cannot afford to litigate, the jilted lover gets away with the reprehensible conduct. Also, the civil lawsuit would only produce a paper judgment that says the defendant owes the victim money. Collecting a significant amount of money from the defendant would be very difficult. But most importantly, real justice can’t be achieved with a money judgment or an injunction. The images are on the internet and they are virtually impossible to remove entirely – you can’t unring the bell.

So, many states, including Arizona, are looking to criminalize revenge porn. Criminalizing revenge porn would give victims a greater chance of getting justice. Criminal laws also come with harsh penalties, including imprisonment, which can be effective in deterring people from posting the photos online in the first place. This is obviously the best possible outcome. To address this problem, Rep. J.D. Mesnard, R-Chandler recently introduced House Bill 2001 which would criminalize the distribution of nude or sexual photos or videos without the person’s consent.

H.B. 2001 has been three years in the making. The first revenge porn bill introduced by Mesnard was passed into law in 2014 but was quickly challenged by the ACLU and other groups including book publishers, photographers and bookstore owners as being unconstitutional because it was broadly worded and had the potential to infringe on First Amendment free speech rights. Rather than fighting the issue in court, the State agreed to revise and narrow the language of the bill to address the ACLU’s concerns.

The revised bill requires that the person in the image have a reasonable expectation of privacy and that the distribution be made with the intent to harm, harass, intimidate, threaten or coerce. The bill makes revenge porn a Class 5 felony which carries a 1.5 year to 2.5 year imprisonment term. It also makes it a Class 1 misdemeanor to threaten to disclose the images, even if the images are never disclosed. A Class 1 misdemeanor carries a maximum 6 month prison term.

These changes seemed to satisfy the ACLU and the other opponents of the prior bill and the revised bill was introduced last year. The House passed it but it died on the last night of the Legislative session when the Senate adjourned before taking any action on it. Undeterred, Mesnard recently re-introduced the bill this legislative session as House Bill 2001. The Legislature made it a priority and the bill quickly and easily passed the House and the Senate and has been sent to Governor Doug Ducey to sign. H.B. 2001 contains an emergency provision so if it is signed by Gov. Ducey, the law would immediately go into effect.

As technology advances, it become easier and easier to take and share photos and videos. So, eliminating revenge porn altogether will be extremely difficult. But if the conduct is criminalized, the laws are actively enforced and judges hand down aggressive sentences, we have a much better chance of preventing people from being victimized.

March 10th, 2016

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