Revenge Porn: Using the Law to Strike Back

Smartphones are a ubiquitous marvel. They allow us to connect to one another instantly while seamlessly exchanging information, photos and more across the globe. However, with the advent of technology that allows us to share so much, sometimes we share /too/ much with the wrong people. Unfortunately, as the common refrain says, nothing ever gets deleted from the internet.

Someone in an intimate relationship may consensually share a sexually explicit photo or video with their partner, intending that the photo be held privately and in trust. But if that relationship dissolves, one may find the person they loved and trusted replaced by an unscrupulous and vindictive ex-lover who decides to distribute those images or videos without their consent. Or a hacker can access your email, cloud-storage account or webcam to obtain images that were intended to be private. The cruel reality is that the something that began intimately may very well end up online. This kind of non-consensual image sharing is commonly referred to as “revenge porn” and it’s far more common than typically thought. Indeed, a 2016 study found that 1 in 25 Americans has been the victim of revenge porn.

Although there is no federal law regarding revenge porn, many states have passed laws prohibiting the production and distribution of non-consensual content. The Texas Penal Code describes “Revenge Porn” as “ Unlawful Disclosure or Promotion of Intimate Visual Material”. We’ll get into the details momentarily, but at a high-level, if a person posts or otherwise publishes material containing nudity or sexual acts without the consent of the person photographed, a crime has been committed. Unlike other criminal statutes requiring some level of intent to harm, the goal of posting the photo or video here does not have to be revenge. Simply posting the material without consent is enough. Moreover, there is a specific section within the statute that provides that just because the person may have taken the photo or video themselves and sent it to the posting party, that does not infer consent to post it online, nor is it a defense to the crime committed.

While the law cannot heal you completely, it can give you the ability to take the image down, pursue criminal charges and recover monetary damages. A good lawyer can help you:

1. Get the image removed from the internet;
2. Interact with Law Enforcement to press criminal charges; and
3. Use the civil justice system to protect you in the future, recover monetary damages, and get a court order (an injunction) to prevent further dissemination of your visual materials.

The new Texas Revenge Porn law went into effect in 2015. Pursuant to that law, it was a crime to distribute sexually explicit images of a person without their consent (Tex. Pen. Code. Section 21.16). Pursuant to the criminal code, posting revenge porn is a state jail felony. Under the Texas Penal Code, a state jail felony can carry a punishment of up to two years in state jail and a fine of up to $10,000.00.

Under Section 21.16 of the Texas Penal Code, a person commits a crime of unlawful disclosure or promotion of intimate visual material when he or she:

• Distributes or transfers photos of a person in which the subject is nude or engaged in sexual activity;
• Distributes such photos without the subject’s consent;
• Distributes such images when the subject took them with a reasonable expectation of privacy; or
• Distributes such photos along with identifying personal information of the subject.

In fact, the mere threat to disclose such photos constitutes a criminal violation of the Texas Penal Code and can be pursued by the State under Chapter 21.16(c) . The law considers harassment as a Class A misdemeanor criminal offense as well. A defendant is guilty of harassment if he or she intentionally harasses, annoys, alarms, abuses, torments, or embarrasses another through electronic communications which includes a transfer of images, writing or data (Tex. Penal Code Sec. 42.07) .

In addition to revenge porn being a criminal offense, it is also considered sexual harassment under Texas law which thereby affords a Plaintiff a civil cause of action against the perpetrator. The revenge porn laws in Texas also allow a victim to seek civil remedies against a Defendant. The civil portion of these laws is codified under Chapter 98B of the Texas Civil Practice and Remedies Code.

It is important to distinguish the difference between pursuing an action in Criminal Court and Civil Court. The criminal courts will press charges that will result in a jail sentence, probation, a protective order, and/or fines against a defendant. Whereas the civil court will award damages (economic and/or non-economic), a civil protective order, and/or a permanent injunction. A civil court cannot sentence a person to jail absent a violation or a finding of contempt for violating the Civil Court’s Order. Another stark difference between the two systems is that the former is pursued by the state (the District or County Attorney and law enforcement) and the latter is pursued by the individual harmed against the perpetrator. Once the Criminal Court picks up a case, it’s up the state to decide how far to pursue the matter. In the civil suit, the victim decides whether to settle or take the matter to trial.

While it is certainly more cost effective to allow the state to pursue the charges on your behalf, the civil courts are a faster way to obtain every victim’s desired result – the removal of any graphic images – and, more importantly, leaves the victim in control of whether or not to settle or go to trial. Specifically, the civil suit permits a victim to recover the following after a finding of guilt or conviction:

1. Actual damages;
2. A protective order;
3. A final injunction;
4. Damages up to $1,000.00 for each violation of the final injunction;
5. Damages up to $500.00 for each violation of the statute or final injunction;
6. Financial damages for the victim’s mental anguish;
7. Court Costs; and/or
8. Attorney’s fees.

Many people who find themselves in the position of needing a lawyer to help themselves with this matter are concerned about the fact that they sent the image or permitted it to be taken. Any such concern is unwarranted. The fact that you consented to the photo being taken or sent it is entirely irrelevant. The law specifically provides that it is not a defense to criminal or civil prosecution that the victim either (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the defendant.

In addition to the above concern, many victims are concerned that by hiring a lawyer or pressing charges, will lead to further sharing of the photo or other photos. While this is a legitimate concern, many defendants agree to take down posted images and destroy any other photos they may possess after receiving a Cease-and-Desist demand letter or a call from law enforcement.

Back