Revenge Porn: A Hurtful and Humiliating Ploy, but Does it Constitute Criminal Behavior?

tcook By tcook, 27th Nov 2013 | Follow this author | RSS Feed
Posted in Wikinut>News>Crime

Examines the emerging social problem of revenge porn and analyzes critical factors that precipitate a specific response by law enforcement.

Social Media

People have a tendancy to broadcast the most intimate details of their daily events within the virtual world of social media. An extension of their real-life personalities, this world provides a witness to the darker side of human thought and behavior. The online stories of jilted lovers are becoming relatively commonplace: a woman breaks it off with her partner; he responds by plastering very private pictures of her all over the internet. She unsuccessfully attempts to remove the pictures from various webpages herself. Faced with the magnitude of the problem and it’s affect upon her future, she reluctantly contacts the police for help. They inform her that no crime has been committed, sending her out the door with an admonishment to avoid putting herself in this “position” ever again. End of story.

Implications of Revenge Porn

There is a caveat - those pictures will never disappear, and they will likely be used to defame, humiliate, and discredit her in the future. There is no way to completely erase data once it is uploaded to social media; in fact, the longer it is out there in cyber-space, the further it is distributed. The intimate photos can pop up whenever someone searches her name, and thanks to the newest facial-recognition technology, they will soon appear alongside all the other pictures of her of that have been uploaded through various social media sources. With just a few keystrokes, her partner has drastically decreased her ability to obtain employment or to run for public office. Her standing in family child cutody court for is lowered if the couple has minor children together, and the pictures are brought up as evidence of her poor judgement. In her view, the entire incident equates to a sexual assault.

Legal Considerations

Laws governing how data is collected and shared on the internet do not currently exist. Though a few lawmakers have introduced legislation that would empower law enforcement, most US citizens do not want to limit freedom of speech in any form. We need to ask ourselves some questions before we further stripping down our civil rights:

1. Should revenge porn be considered a criminal activity; if so, why?
2. Can the people who upload the pictures be charged under existing laws?
3. Do we need additional, specific laws to deter this type of behavior/crime?
4. What evidence is needed to prosecute and how should the evidence be collected?

Domestic Violence Overtones

People who post nude pictures after a breakup in order to get revenge go beyond action that is simply “spiteful and mean.” The primary victims in such cases are women under duress from a long history of domestic violence. Many were pressured into consent, having refused a photo shoot several times until an aggressive partner gained compliance through manipulation and threats. His motive is an eerily similar tactic to the “branding” practice used by human traffickers. In the trafficking market, enslaved victims are “marked”as a means of notifying other traffickers that she is already owned. It also serves to notify the public that she is undesireable, worthless, and shouldn’t be treated as a respectable member of society. In other words, it is used as a means of physical, emotional and social control, and it effectively insures sustained captivity.

Prosecution Implications

In many, but not all cases, posting revenge porn can be prosecuted under state or federal law. The photographer who uploads porn photos, and then demands a sum of money to remove them, is clearly perpetrating an act of blackmail. Copyright infringement civil lawsuits may be filed if the victim photographed herself, which were then published without her written authorization. Most cases are not that simple. Pictures are usually posted anonymously on one or more fake social media profiles using the victim’s real identity. Without definitive proof that the fraudulent profiles were created by the ex-partner for the purpose of menacing, threatening or harrassing the victim, there is no legal base upon which to build a case and no criminal intent to prosecute it with.

Conceptulization and Specialization

The technical nature of these matters and the specialized legal maneuvers required to combat them is a challenge that law enforcement is not currently equipped to handle. They are limited by unclear laws, inadequate training and a lack of professional supervision. Further compounding the problem, there is no incentive to prosecute what is percieved as a frivolous, costly, complex personal issue. However, that perception is beginning to unravel as the evidence mounts that these cases have the potential to be fatal and extremely costly to society. The key missing component is the lethality assessment, which should be performed during victim interviews, assuming that a police report is generated; this is a critical link in the chain of a domestic violence victim’s fight for survival. Those assessments flag perpetrators who refuse to accept that a relationship is over, who relentlessly continue to stalk their victim, and who are actually the most lethal subtype of domestic violence abusers.

Burden of Proof

Assuming a case does actually make it into criminal court, the prosecutor is probably going to offer a plea bargain. First time offences typically result in fines, and occasionally in probation restrictions. In the unlikely event the case proceeds to a trial, the victim must prove guilt beyond the shadow of a reasonable doubt. This is nearly impossible in a cyber-case without any physical evidence or incriminating witnesses. IP addresses can be tracked, but how do we prove who the person sitting behind the computer is? Further componding the problem, judges only concern themselves with a single abuse incident at a time, usually the last date on which a crime occurred. They don’t want to drudge through the entire history of manipulation and coercion that precedes and then follows each individual criminal act.

Avoiding Secondary Victimization

Victims who are simultaneously experiencing psychological trauma, unemployment and homelessness, often as a direct result of their domestic violence or stalking history, face secondary victimization by the legal and judicial system. Financial concerns often prevent them from gathering necessary evidence by using costly private investigation services. Police investigators will not collect any digital forensic evidence with out a court-ordered subpeona, which won’t be requested, because they do not believe that any crime has actually occured. Internet service providers protect computer user activity logs to avoid violating users’ personal privacy. The only way to appropriately handle these delicate cases is to pass specific cyber-stalking laws. Laws should require strict police department adherance to standard protocals for documenting the abuse history, conducting interviews, administering lethality assessments, and accessing data quickly through expedited subpeonas.

Putting it into Perspective

Many crimes are prosecuted using other forms of media, including postal mail and the telephone, and crime on the internet is not much different. Most police departments currently lack the capacity to handle the sheer volume of social media crime. A framework to build upon is essential, as well as the provision of specialized training. Every victim of revenge porn should be able to expect due process, from the moment they file a report, assisted by a police officer who has been trained in digital forensics and domestic violence. Under federal law, that officer will need access to internet service providers and social media help desks, immediately after a standard subpeona is served. If the release of data is refused, the case must be referred to the state’s attorney general for follow-up. Sentencing of perpetrators should include monetary restitution, jail time and probation for first cyber-stalking misdemeanor offenses, and prison with lifetime offender-registery monitoring for second felony offences.

In Summary

Society has been caught unprepared for the rapid growth of technology and it’s implications for social control. Revenge porn offences are often intertwined with domestic violence and stalking. The internet is being used as a weapon in such cases. The statistics regarding violence against women in the US tell us that action is needed to prevent further social instability and to decrease mortality rates of all sexes. The challenge of technology could be a vital turning point for law enforcement, and a golden opportunity to enhance the way we respond to domestic violence.

Tags

Criminal Behavior, Domestic Violence, Legal Considerations, Revenge Porn, Sexual Assault, Social Media, Stalking

Meet the author

author avatar tcook
I am a freelance writer and a human rights advocate with a general interest in victims' rights, human development, and social change.

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Comments

author avatar Sivaramakrishnan A
27th Nov 2013 (#)

Law and justice lag behind technological advancement which cuts both ways. Few rotten apples spoil the entire lot and create misery. Good post - siva

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