In today’s digital world, many couples share intimate photos and videos to grow their connection. However, when a relationship ends, the private content exchanged can become a source of conflict when shared online. As the name suggests, most offenders share these images and videos online to retaliate. According to California Penal Code Section 647(j)(4), it is illegal to share explicit images or videos without consent.
This law provides safeguards to protect people from emotional or reputational harm when other people share their intimate images and videos with malicious intent. It outlines severe penalties for offenders. Therefore, if you are accused of revenge porn, you must act quickly and engage a criminal defense attorney to protect your rights. Contact Monterey Criminal Attorney. We are ready to help you protect your rights and to fight for the best possible outcome.
Why Do People Share Compromising Images and Videos of Another Person?
In most cases, offenders share these materials in anger or out of hurt. They usually try to humiliate the person depicted by revealing images and videos that were meant to remain private. This can result in public humiliation, damage to the victim’s reputation, or strained personal and professional relationships. In some cases, financial motives can be what compelled the offender to share the material, for example, in attempts at blackmail or selling the content to other money-hungry organizations.
Revenge porn is more than a breach of trust. It is a form of domestic violence since it is a form of emotional and psychological abuse. The perpetrator shares the explicit material without the consent of the victim in an attempt to exert power over the victim, causing emotionally distressing trauma. These actions align with other abusive behavior, which is all based on control and punishment.
Revenge Porn Under California Law
If you share explicit images or videos of another person and they do not consent, your actions will result in revenge porn charges. These images and videos depict intimate body parts or sexual acts. You violate the law if you and the other person agree that the content will stay private and you know or should know that sharing it will cause them emotional distress.
Distributing these images means doing more than just posting them online. It means giving them to someone else, showing them to a large group, or sharing them on social media. You are still liable even if you ask someone else to share the content. There are exceptions, though, which include:
- Sharing to report a crime
- Sharing to comply with a legal order, or
- Sharing to engage in lawful public discourse — However, distributing images of someone simply because they are a public figure does not protect you from legal consequences.
California’s revenge porn laws are a reminder that you should get consent from everyone appearing in explicit images or videos. Let us say you have permission from one person to share the content, but other parties in the photos or videos have not given their consent, and you share it anyway. You could still be accused of revenge porn. There are many cases of ex-lovers taking revenge, but strangers can commit this offense, too.
Convicting someone of revenge porn requires prosecutors to prove the following five elements of the crime beyond a reasonable doubt per Penal Code 647(j)(4). Failure to do so means the jury will not convict.
- Existence of an intimate image or video — It is necessary for prosecutors to show that there is a sexually explicit or intimate image or video.
- Intentional distribution — You acted deliberately, which means you must have shared or posted the image or video.
- Agreement of privacy — Prosecutors must show that you and the victim agreed the image or video would stay private.
- Knowledge of emotional distress — You knew, or should have known, that distributing the image or video would cause the victim to suffer emotional distress.
- Emotional distress — The distribution must have caused the victim emotional distress.
Let us examine each element closely.
a) The Intimate Image or Video Exists
A revenge porn case requires the prosecution to prove that there is a sexually explicit or intimate image or video. The content must meet a legal definition, which includes showing intimate body parts or sexual acts. The material is the foundation of the revenge porn charges you face.
Identifiable intimate body parts and sexual activity are under the law, and areas of the body are deemed private and should be private. Genitals and the anus are intimate body parts. For ladies, this definition includes any part of the breasts underneath the top of the areola. However, these areas are sensitive, so exposing them without consent raises significant legal and ethical issues.
The law also covers sexual activity. Examples include sexual intercourse, sodomy, oral copulation, sexual penetration, and masturbation. These actions can be represented through any media and have grave implications for the people concerned. For an image or video to qualify as depicting identifiable intimate body parts or sexual activity, anyone seeing the video or photo should be able to see and recognize the same. He/she must also be able to recognize or identify the individuals in the video or image. The recognition can be due to visual clarity, context, or identified features that make it evident who appears in the content.
Merely mentioning that a compromising image or video of someone exists does not make a revenge porn case. The prosecution must show that the intimate material exists. Tangible evidence like the actual image, video, witness testimony, or digital records helps establish this. Without that solid evidence, their claims do not hold water and will not stand up in court when they charge you.
Furthermore, the alleged victim’s privacy is only violated if the image or video identifies him/her. Without this evidence, the idea that unauthorized distribution or emotional distress has occurred tapers off. If the prosecution does not prove all these elements beyond a reasonable doubt, it weakens the case against you significantly, and dismissal is likely.
b) You Intentionally Distributed or Shared the Images or Videos
Prosecutors need to prove that you intended to share or post that sexually explicit image or video. This requirement distinguishes intentional action from an accidental one. It should be clear that your behavior has to be a conscious decision to distribute the image or video.
Intentionally sharing means that you took steps to spread the material. This upload could be done online, sent to others, or made available. For the prosecution to prove you knew what you were doing, you had to have known the content you shared was explicit, and you chose to share it, knowing what the potential consequences could be. For example, say you shared the material when you were in a heated moment and did not consider its implications at the time. In this scenario, your actions do not align with the requisite intent for the jury to find you guilty.
Conversely, intent is determined by examining your mindset when distributing the video or image. Prosecutors must show that you acted with the intent to share clear evidence. It will all boil down to whether you knew the material was intimate and that sharing it could hurt or emotionally distress the person depicted at the time. If the state cannot prove this critical fact, their case against you weakens significantly.
In that respect, the central focus is to protect individuals from unjust accusations of committing revenge porn, yet they never intended to.
Further, you must have caused the alleged victim to suffer emotional distress. It is not enough for prosecutors to claim you hurt the victim. There is a need for evidence to support the claim. The impact on the victim’s mental and emotional well-being can come through the victim's testimony. They might complain about changes in their behavior, mood, or personal relationships because it was a consequence of the distribution of intimate images or videos.
Statements from therapists, along with mental health records, are also helpful because they demonstrate that the victim was suffering as a result of emotional damage and sought professional help. Friends, family, or colleagues could also testify, shedding light on how the victim’s distress expressed itself in their daily lives.
c) You Had an Understanding that the Images and Videos Would Remain Private
The state must show that both parties expected the content to remain confidential. This mutual agreement is the basis for claims of unauthorized distribution. This understanding can be proven using different forms of evidence. The state could present text messages or emails in which you and the victim explicitly discuss how the material is private. If any communication intends that the content should be confidential, the jury will be convinced of your guilt. Prosecutors will equally use your conversation about the privacy of the material with other witnesses as evidence against you.
Courts will also examine the context in which the images or videos were shared. Exchanging the pictures in a private setting or under circumstances that suggest confidentiality can serve as an example of how both of you assumed the images were not meant to be shared with anyone else. Further, expert testimony on norms of intimate content sharing can also emphasize people's expectation of privacy in these situations.
If the state proves that you and the victim understood that the material was private, they can show that this violated the agreement.
What Happens in Cases Involving Fake Sexually Explicit Material?
Deep fake videos and altered images are a growing concern. Assembly Bill 602 deals with this issue. If you create or share fake sexually explicit material, you risk facing significant legal penalties. This law allows an alleged victim who appears in the image or video to file a civil lawsuit against anyone who made or distributed the sexually explicit material without the victim’s consent. Even unintentional violations can be severe, especially if you fail to realize the material was created with consent.
The bill mainly focuses on altered depictions. These refer to any digitally manipulated content that falsely represents an individual’s involvement in an act they did not participate in. However, the situation becomes more complicated because deepfake technology can create incredibly realistic representations of individuals participating in an activity they never actually participated in. If you unknowingly share or create similar content, you could face lawsuits and pay significant monetary damages, regardless of your intent.
Furthermore, this legislation mandates that someone's likeness be used with their explicit consent in sexually explicit material. The content can only be agreed upon with written permission. When creating and distributing content, you must pay meticulous attention to getting proper consent. If you fail to, you could be accused of despicable conduct. These claims also subject you to punitive, statutory, and economic damages. The bill also allows prevailing plaintiffs to recover attorneys’ fees and seek injunctive relief, meaning your potential liabilities increase.
The bill does offer some exceptions, like for matters of legitimate public concern or works of political value. However, they do not guarantee your protection. You can be liable for violating these exceptions if you do not adequately justify the relevance of your content. Hence, the burden is on you to show why your content is within the exceptions.
The law also allows persons to take action within three years of learning of the unauthorized use of their likeness. This extended statute of limitations means you are constantly threatened by lawsuits for content you have already disseminated.
Note: Facing a criminal case for sharing this material does not prevent victims from seeking compensation through a civil lawsuit. The criminal and civil proceedings are independent of each other.
Defenses You Could Assert in a Revenge Porn Case
Hiring an attorney will help you to effectively challenge revenge porn allegations. An experienced criminal defense attorney will evaluate your case, examine the evidence, and decide your best defense strategy. Some of the common defenses include the following:
a) You Did Not Deliberately Distribute The Material
Your attorney can convince the court that you did not intend to share the explicit material in a revenge porn case. They will show that the distribution of the content was accidental, unauthorized, or out of your control. Your attorney can present compelling evidence like witness statements or digital records showing that you did not act maliciously and never intended to disturb or cause distress to the victim.
Your attorney could also investigate the circumstances of the material being shared. This can be good if it happened in a context where the recipient had no apparent intent, such as in a private conversation where the recipient misused the content.
Your attorney can also question why the accuser is accusing you. If the evidence points to allegations from a need to seek retribution rather than genuine emotional distress, this could significantly impact the case's disposition.
b) The Person in the Image or Video Cannot Be Identified
You can argue that the individual pictured or captured in the video is not identifiable and thus not guilty in a revenge porn case. If you can prove that the person in the video or image has no recognizable features, no distinct tattoos, and no other identifying features, you will effectively challenge the prosecution’s case since they cannot prove harm.
Revenge porn cases depend on the victims being identifiable for the charges to be sustainable. If the prosecution cannot show that the individual is recognizable, it has difficulty meeting the burden of proof necessary for a conviction. Your attorney can call in experts like digital analysts who recognize visual technology. They can add to your argument by showing that the material is ambiguous as to who it refers to.
c) The Alleged Victim Consented
Your attorney could argue that the alleged victim willingly turned over the explicit content, a necessary point in a case like this. Consent could be obtained under circumstances where it may be proved that both parties consented to using and distributing the material. This consent is critical to mounting a good defense.
If your agreement about sharing the content was straightforward, that is, there was a direct conversation or agreement, you can present this as evidence. Explicit or implied consent could have been given or evidenced by continuing relationship behavior. For example, if you exchanged intimate material with the alleged victim regularly, which everyone understood you would do on the basis that you shared it with people all of the time, then you would have a legitimate defense. Text messages can also help you prove your claim.
Where the alleged victim has publicly posted the content, especially on social media, consent is tied to their privacy settings and intended audience. You could argue that if the content was distributed without clear restrictions, the sharing was within the scope of their permission.
Plus, in the cases of modeling or adult entertainment, for example, written contracts typically govern how far the material can go. You can find these agreements that allow you to share content and use them in your defense.
However, for this defense to be successful, you must prove that consent was given at the time of distribution. However, if the alleged victim later withdrew consent or placed restrictions on the sharing, it could make your defense difficult, so you need to show that the sharing occurred within the agreed terms.
d) The Victim Did Not Suffer Any Emotional Distress
Prosecutors must demonstrate that the alleged victim was emotionally distressed to secure your conviction. If they cannot do this, their case is weakened significantly. These charges are generally determined by the degree of emotional distress. If you can prove that the alleged victim was not harmed emotionally, then you can challenge the charges. Doing so requires evidence that their daily lives, social interactions, and general behavior continued without change after sharing the material. The emotional impact was minimal or absent if the person kept up with the routine and with relationships or stayed active on social media.
You may also want witness testimonies from people who regularly contact the alleged victim. If friends, colleagues, or acquaintances noticed no signs of distress, this adds weight to the argument that the prosecution overlooked the same and pursued the charges anyway.
In some situations, expert testimony could also support your case, demonstrating that the emotional distress claimed contradicts what commonly follows such an incident.
Penalties According to Penal Code 647(j)(4)
Revenge porn is a misdemeanor offense that carries specific penalties. If convicted, you may face up to:
- Six months of incarceration in county jail
- A fine of up to $1,000
However, if you have a prior conviction for revenge porn or the victim is a minor, the punishments become more severe. In these circumstances, you could face:
- Up to one year in jail
- A fine reaching $2,000
Find a Criminal Defense Attorney Near Me
Revenge porn convictions can destroy your reputation and cause a lot of disruption in your personal and professional life forever. It does not just carry legal consequences, specifically fines or imprisonment. It leaves a mark on your character that stays with you. Accusations alone can do real damage. They can cause public shame, broken relationships, and career setbacks, even before any verdict. These allegations impact far beyond the courtroom, with social stigmas that can follow you after the case conclusion.
The charges are serious, and immediate action is necessary. If you fail to mount a strong defense, you can suffer long-term harm that is difficult to recover. You could be convicted for years, and fixing your reputation and moving on will be hard. You have to take action now to protect your rights and your future.
If you find yourself being accused of revenge porn, do not attempt to fight these charges on your own. Monterey Criminal Attorney can help you when you need a legal defense to fight the allegations and protect your future. Contact us at 831-574-1791 and let us work with you to protect your rights and work to secure the best legal outcome.
