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Minnesota Revenge Porn Law Update

A proposal for a new Minnesota Revenge porn law has gained momentum ever since the Court of Appeals declared Minnesota’s criminal defamation law unconstitutional. Rep. John Lesch presented a proposed version of a Minnesota revenge porn law at the first legislative working group back on June 25.  

The proposed Minnesota law is taken directly from the current Illinois revenge porn law.  Certain advocates for revenge porn laws feel that the Illinois version is the model that other states should copy.  However, the Illinois revenge porn law does not require proof of an actor’s criminal intent. This could lead to potential constitutional challenges arguing the law is overbroad and punishes perfectly innocent behavior.

The ACLU recently challenged the Arizona revenge porn law claiming it lacked the constitutional safeguards required of law that punishes speech. The Arizona law banned the posting of nude images without consent, but lacked any requirement that the actor intended to cause harm to the subject of the image. Because of the lack of intent requirement, conduct such as a college professor’s use of a historical photo that contained nudity could be punished, as could a newspaper or librarian that distributes similar photos.  

The Arizona Attorney General recognized the shortcomings of the law and has since agreed to suspend prosecution under the law until the state legislature can fix the law.  Similar challenges could be brought against other state revenge porn laws that fail to contain the necessary element of criminal intent.

JUST RECENTLY, WASHINGTON BECAME THE 25TH STATE TO ENACT A REVENGE PORN LAW.

By my count, 17 of these state laws require some sort of criminal intent.  The definitions of criminal intent vary from state to state, but commonly include some sort of intent to harm, harass, annoy, humiliate, profit from, or cause serious emotional distress to the subject of the image or video.

Vermont has a good intent to harm element, defining it as the intent to cause physical injury, financial injury, or serious emotional distress.  This would protect the college professor, newspaper, and librarian examples above.  

Some sort of criminal intent element is necessary for any revenge porn law because criminal laws do not punish the foolish mistake.  If Minnesota adopts Illinois’ current revenge porn law as its own, it’s setting itself up for a legal challenge under the First Amendment and runs the risk that a court declares the statute unconstitutional.  

The legislature would then be forced to start over in crafting a Minnesota revenge porn law, leaving victims unprotected in the interim.  The safer  route is to craft a law with the constitutional requirement of criminal intent.

The other necessary elements of a constitutional revenge porn law include requiring that:

  • the actor knew the other person did not consent to the disclosure
  • the actor knew the other person had a reasonable expectation that the media would be kept private
  • the subject of the photograph, video, or other media be identifiable

The law should also provide for exceptions that are not punished under the law.  These exceptions should include:

  • law enforcement investigations
  • voluntary nudity in public
  • voluntary nudity for commercial purposes
  • nudity involving legitimate public issues, concerns, figures or other newsworthy events
  • legitimate educational purposes, and
  • “baby in the tub” – parents who share nude or partially nude photos of their young children

Some state revenge porn laws try to provide for an exception to the “baby in the tub” concern by providing for an age requirement of the subject.  For example, the Illinois revenge porn law requires that the subject be at least 18 years old before punishing the actor.  This seems odd because a 17 year old should be just as protected as an 18 year old.  Furthermore, shouldn’t a 16 year old be protected as well?

SOME STATE CRIMINAL REVENGE PORN LAWS ALSO AUTHORIZE A SEPARATE CIVIL CAUSE OF ACTION THAT ALLOWS THE SUBJECT OF THE DISCLOSURE TO SUE THE RESPONSIBLE PARTY.

It’s fine if a state revenge porn law wants explicitly include a separate civil cause of action, but I’m not sure that it’s necessary here.  Victims of revenge porn behavior in Minnesota can already bring a suit against an actor under invasion of privacy.  However, it would be nice if a statute specifically provided for the types of damages available to a revenge porn victim.

Finally, the majority of states with a current revenge porn law makes the crime a misdemeanor.  A good revenge porn law should stagger the levels of sentencing, increasing the penalties depending on the circumstances of the case.  

For example, a person who profited from revenge porn activities (operates a website or sold media to a website) or tried to coerce a benefit from the subject should face increased penalties compared to someone who shared a nude photo with his locker room buddies.

federal revenge porn law is expected to be announced on July 23.

CONTACT US

Contact our Minnesota criminal defense lawyers or Minnesota personal injury lawyers if you or someone you know has questions about revenge porn.  We’ll be happy to offer a free consultation.

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John T. Arechigo, Esq.

Attorney John Arechigo has a passion for criminal defense.  He devotes nearly 100% of his practice to defending individuals charged with a crime. John offers what very few other Twin Cities criminal defense lawyers can offer. His combination of experience, success, connections, resources, accessibility, and complete handling of a client’s file sets him apart from his colleagues.

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