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“For His Eyes Only”: Why Federal Legislation Is Needed to Combat Revenge Porn

Abstract

Nonconsensual pornography causes dramatic and, in some cases, irreversible harm to the victim.  Beyond the obvious embarrassment suffered, victims are often threatened with bodily harm, fired from their jobs, or forced to change their names.  Some have been driven to suicide.

Today, intimate photo-sharing among partners is common, and not coincidentally, revenge porn postings are on the rise.  In the absence of relevant criminal statutes, perpetrators are rarely held accountable for their actions and victims are rarely remedied.  “In the real world, civil lawsuits are no remedy at all,” says Mitchell Matorin, an attorney who has represented revenge porn victims.  Civil litigation is costly, and even if a lawyer is willing to take on a case, the harms inflicted on revenge porn victims often do not fit nicely into existing legal theories of remediable injury.  To address this problem, twenty-seven states have enacted laws that criminalize the distribution of nonconsensual pornography.  However, these state laws vary in scope, and they often contain loopholes, such as prohibiting prosecution when the images originated as “selfies,” or requiring a specific motive of the perpetrator.  This leaves too many victims without a remedy.

One state, Illinois, has crafted a law that addresses these failings. The Non-Consensual Dissemination of Private Sexual Images statute in the Illinois Criminal Code allows a revenge porn victim to recover damages no matter the origin of the images, and requires only an intent to disseminate the image rather than an intent to cause harm.

This Article argues that lawmakers should adopt a federal criminal statute modeled after Illinois’ in order to prevent perpetrators of revenge porn from slipping through the cracks of inadequate state law.  Part II describes how revenge porn has become a widespread problem within the United States, explaining why it should legally be considered a form of sexual abuse and addressing common misconceptions regarding consent in the context of personal-information sharing. Part III discusses the current lack of legal remedies available to revenge porn victims, and finally, Part IV proposes a comprehensive amendment to the United States Code aimed at closing common loopholes in revenge porn laws and providing victims with the recognition and remedies they deserve.

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