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Commentary
'Revenge porn' should be a crime regardless of intent
Massachusetts prides itself on leading the country on many important issues. The state has been out front on health care, education reform and raising the minimum wage. But when it comes to laws criminalizing the non-consensual sharing of intimate images of someone else, Massachusetts lags behind 48 states and three U.S. territories in having no law criminalizing so-called “revenge porn.”
Bills to criminalize revenge porn (more properly called image-based sexual abuse) have been bouncing around the Massachusetts Legislature since 2014 and this is the closest a bill has gotten to becoming law. In January, the Massachusetts House passed a bill and the Senate unanimously passed its own bill in March. Yesterday, it was reported that lawmakers have reached a compromise on the two bills and the compromise may soon become law.
As law professors who have analyzed all of the current U.S. laws that address revenge porn scenarios, we reviewed the Mass. House and Senate bills in all of their forms over the years. If the enacted law uses the definition of the crime that was included in the current bills, it will not serve to effectively criminalize much of the image-based sexual abuse that people (usually women) suffer.
... the victim can’t prove the perpetrator intended harm but nevertheless the victim suffered harm, many times very significant harm.
Like the majority of state laws on this topic, the Massachusetts bill proposes to criminalize the non-consensual distribution, or sharing, of an intimate image of another person — but only if the person who shared the image intended to harm or harass the victim. Ninety to 98 percent of victims of image-based sexual abuse are women. So, for example, if a man posts intimate images of a woman to the internet or otherwise shares them without her consent, most state laws would not define this as a crime — unless he specifically did so with the intent to harm her. The colloquial name “revenge porn” even suggests the motivation comes from anger or an attempt to harm the victim.
By passing laws against image-based sexual abuse, states are recognizing that each of us has privacy rights in the intimate photos or videos that we might choose to share with someone. This holds true even if we consented to taking the photos or making the videos — and even if we took them ourselves.
But in our research of the 51 jurisdictions with laws already on the books, we found that the majority of jurisdictions get it wrong by requiring that the crime include an intent to harm or harass the victim. This definition leaves out the vast majority of situations where the victim can’t prove the perpetrator intended harm, but nevertheless the victim suffered harm, many times very significant harm. Massachusetts seems poised to follow suit.
Most of the time when intimate images are posted to the internet or shared without consent it is not done with an intent to harm or harass. But for whatever reason intimate images are shared without a woman's consent, she suffers mental health effects on the same scale as a sexual assault victim and, in addition, public shame and humiliation, difficulty in finding new romantic partners, and job loss or problems securing new employment.
The bill pending in Massachusetts does not have to make the same mistake as most other states have in defining the crime by looking to the intentions of the perpetrator. Before the bill becomes law, Massachusetts has a chance to get it right.
We urge Massachusetts lawmakers to revisit the definition of the crime and revise it so that it will actually protect the majority of victims. Neither a perpetrator’s motivation for publishing intimate images of an individual, nor the status of a perpetrator’s relationship with the individual in the images, should be included in the elements that define the behavior as a crime. That should be reflected in the law.
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Considering how long this issue has been pending and how close it is to becoming law, some might suggest getting something on the books is better than nothing. The Legislature’s progress in getting the bill this far is promising, but we urge lawmakers to pass an effective law that might actually protect the majority of victims. It doesn’t matter why the perpetrator breached the trust and violated the privacy of the victim.
The Massachusetts legislation should omit any requirement of an “intent to harm” the victim to avoid the mistakes that other states have made in their legislation. The delay in passing a bill earlier is now an opportunity for the commonwealth to pass the right bill.
Jessica A. Magaldi is the Ivan Fox Professor and Scholar at Pace University. She writes on a number of topics related to technology, gender, and the law. In fall 2024, she will teach a course she developed on Taylor Swift and the music industry.
Jonathan Sales is an adjunct professor and attorney in private practice in Boston. He researches and writes at the law’s intersection with business and gender. His recent work includes a study of the representation of women in top corporate management.