Establishes the crime of non-consensual dissemination of sexually explicit images

Additionally, the dissemination must be without such person's consent and under circumstances in which the person has a reasonable expectation of privacy, meaning that the person has consented to the capture or possession of an image within the context of a private or confidential relationship.

250.70.1 provides definitions of "intimate parts" and "sexual contact."

250.70.2 provides exceptions for lawful and common practices of law enforcement, disseminations made for a legitimate public purpose, and situations involving voluntary exposure in public or commercial settings, and disseminations made in the reporting of unlawful activity.

250.70.3 Non-consensual dissemination of sexually explicit images is a class A misdemeanor.

250.75 is also added to the penal law to allow for a civil cause of action for the non-consensual dissemination of sexually explicit images.

The statute of limitations to bring suit is five years. Nothing in the section requires that a criminal charge be brought or a criminal conviction obtained as a condition of bringing the civil cause of action. In addition to injunctive relief, the plaintiff is entitled to actual damages, punitive damages, and reasonable court costs and attorney fees. The actual damages are the higher of either (1) the calculated actual damages at the rate of $1,000 per day for each day the images were viewable up to thirty days, or each time a threat to distribute was made, or an image fraudulently obtained, or (2) $10,000. There are several affirmative defenses to the civil suit included in this legislation. Additionally, 250.75.4 allows the plaintiff's identifying information to be redacted and to proceed with the case under a pseudonym. The court must inform the plaintiff of the option to proceed under a pseudonym at the earliest possible point and shall maintain records in a manner that protects the plaintiff's confidentiality.

Justification

In an era of increased text messaging, social networking, and emailing, people in intimate relationships sometimes share pictures with each other, some of which may be sexually explicit in nature. However, recipients of these images do not always keep the images within the confines of an intimate relationship, and have the ability to widely disseminate the photos on the Internet.

The non-consensual dissemination of such sexually explicit images, also known as "revenge porn" is often provided to Internet websites, and features photos sometimes accompanied by disparaging descriptions and identifying details, such as where the victims live and work, as well as links to their social network pages.

Posting these photographs online is damaging to the reputations of the victims. These photographs have extensive negative effects, including destroying future intimate relationships and educational and employment opportunities. Victims are routinely threatened with sexual assault, stalked, harassed, or fired from jobs.

New York's current distribution of unlawful surveillance law only governs photographs taken without the subject's consent. This bill would govern photographs that are captured consensually, as part of an intimate, private relationship, which are later disclosed by an individual to the public without the consent of the individual photographed.

Criminalization is preferable to civil suits by victims because civil suits do not deter those who upload or disclose new images after a civil suit has ended. Furthermore, a lengthy trial is emotionally exhausting and prohibitively expensive. Moreover, the websites that distribute nonconsensual pornography are given broad immunity for civil liability under federal law through the Communications Decency Act. Therefore, criminalizing dissemination of these photos may prevent websites from benefiting from the harmful images.

However, because New York relies on common law to pursue a civil case, including the torts of harassment and intentional infliction of emotional distress, a civil suit is often difficult to pursue and win. As such, this legislation adds a civil cause of action for non-consensual dissemination of sexually explicit images that would provide recourse to victims. The civil cause of action is designed to work in conjunction with the criminal law, and does not require that a criminal conviction or charge be obtained in order to proceed. The victim will have a choice whether to pursue a criminal or civil case, or both. Additionally, victims of non-consensual pornography have five years to bring a suit for the nonconsensual dissemination of sexually explicit images.

The criminal portion of the bill is also narrowly drawn so as not to infringe on First Amendment rights, as there is no constitutional protection afforded to individuals who consume or distribute sexually explicit images of individuals without their consent. The bill also creates exceptions for lawful activity.

Prior legislative history

2013-2014: A.8214/S.5949 - Amend and recommit to codes.

Fiscal implications

None.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.