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Why isn’t revenge porn treated as a serious crime?

On October 31, California Rep. Katie Hill resigned from Congress, after it was revealed that she was involved in a sexual relationship with a staffer. This information came along with what's being considered as revenge porn — pornographic images that her then-husband had shared with Republican opposition, allegedly without Hill’s consent.

In the days following, numerous op-eds arguing for and against Hill’s resignation sprung up; those opposed believed Hill was the victim not only of revenge porn but of a double standard and Boomer-era perceptions of morality. Some of those who supported her resignation blamed Hill for the images existing in the first place — the lines of thinking all-too-common in victim-blaming rhetoric, especially regarding revenge porn.

Hill’s case didn’t only renew discourse about the effects revenge porn can have the victim of such crime, but also what's needed as a response to the increasingly common form of abuse.

One of the responses to Hill’s resignation came from Amber Heard, whose own nude images were shared without her consent, in an op-ed in the New York Times. “Ms. Hill’s resignation highlights how non-consensual pornography can force women out of positions of power and deter women from political participation,” Heard wrote.

Heard is one of the many people who have joined the call for a federal law regarding revenge porn. Since 2013, 46 states and Washington D.C. have passed revenge porn laws, but many advocates believe that given the amount of non-consensual porn being shared, and the long-lasting damage it can have on a victim’s life, there needs to a nationwide legal consequence for the people who distribute the images and videos.

Heard, as well as many experts and victims advocates, use the term “non-consensual porn” (NCP) to refer to explicit images shared without permission of the subject, despite the intent of the poster. Heard pointed out that it’s not just celebrities who risk are at risk of viral exposure after having nude photos shared online without consent.

“The power of social media makes it possible for any person to be dragged before the eyes of the world. Non-consensual pornography in particular forces a horrible kind of fame on its victims,” Heard wrote, adding that the average victim “has very few resources to manage the fallout of that involuntary fame.”

Daniel Szalkiewicz, a New York City-based lawyer who litigates NCP cases, says that his clients often experiences “some very serious effects,” in the wake of their images or videos being shared without their consent. In a phone call with Mic, he explained the various ways that being a victim of NCP can affect someone.

“A lot of our clients have from PTSD, again different versions of it,” Szalkiewicz says. “Clients just have fear of going on social media or opening their computer, to begin with, because once their images are shared it is generally shared with their name, and they find out that they've been a victim of revenge porn because of the fact that individuals are sending emails or social media messages to them.”

Michelle Gonzalez, who is the executive director of the Cyber Civil Rights Initiative (CCRI), works with victims of NCP regularly and details some of the common outcomes of being a victim of this form of abuse. “Non-consensual pornography can destroy victims’ intimate relationships, as well as their educational and employment opportunities,” Gonzalez tells Mic. “Victims are routinely threatened with sexual assault, stalked, harassed, fired from jobs, and forced to change schools.” Some have even killed themselves, she says.

According to a Pew Research Center study on online harassment, 12% of adults aged 18-29 have had “explicit images of themselves shared without their consent.” In the states where revenge porn laws exist, they differ dramatically. For example, in Georgia, the dissemination of NCP is a misdemeanor, and in Missouri, it is a Class D felony for a first offense. In Rhode Island, a first offense is a misdemeanor unless the NCP shared was used to commit extortion — in that case, it automatically becomes a felony charge.

“Non-consensual pornography can destroy victims’ intimate relationships, as well as their educational and employment opportunities."

In New York, the law regarding non-consensual porn is newer than other states — and much less effective in terms of prosecuting these cases. Without a federal law addressing NCP, if your private images or videos are shared without your consent and posted online, the response from law enforcement regarding your case will entirely depend on which state you live in.

But some people are concerned about the criminalization of publishing NCP, especially at the federal level — there’s a thin line between criminalizing the publication of NCP and of all publishing. That has defenders of the First Amendment concerned. In the case of Rhode Island, an earlier version of the NCP law was vetoed by Governor Gina Raimondo due to legal language that made many (including the American Civil Liberties Union) fear will have an “unconstitutional chilling effect on speech.

“Federal law is necessary because state laws are limited by jurisdiction,” Gonzalez says. CCRI is an advocate for more effective state laws when it comes to addressing NCP cases, and is one of the leading advocacy groups behind passing a federal law — they’ve even written model legislation. “The Internet has greatly facilitated the production and distribution of non-consensual porn, and federal criminal law is the most effective and appropriate means of addressing interstate crimes.”

Szalkiewicz says that a federal law, versus the current state legislation, criminalizing the distribution of non-consensual pornography would make a huge difference when it came to pursuing justice for the victims. “The problem is that it's a state-by-state case but the internet, if you think about it, is national,” he says. “Anybody can view an image that's put online throughout the entire United States.”

The possibility of a federal law addressing revenge porn has been in limbo for quite some time. In May 2019, the SHIELD (Stopping Harmful Image Exploitation and Limiting Distribution) Act, was reintroduced to the House by Congresswoman Jackie Spier (D-CA) and Congressman John Katko (R-NY). A companion piece of legislation was introduced by Senator Kamala Harris in the Senate in July 2019, and received bipartisan co-sponsorship by Senator Amy Klobuchar (D-Minn.) and Senator Richard Burr (R - N.C.). The purpose of the bill, which received support from both CCRI and Amber Heard, is to amend the federal criminal code “to provide that it is unlawful to knowingly distribute private intimate visual depictions with reckless disregard for the individual's lack of consent to the distribution, and for other purposes.” Neither the House or Senate bill has been voted on yet.

Beyond the assorted hurdles the federal bill faces in Congress, a major challenge when it comes to NCP is the blaming and shaming of victims that permeates nearly every aspect of American culture. After Hill’s resignation, Speaker of the House Nancy Pelosi appeared to question why the images of Hill existed in the first place.

“It goes to show you, we should say to young candidates, and to kids in kindergarten really, be careful when transmitting photos,” Pelosi said, according to Buzzfeed News. Pelosi went on to say that she's warned her children and grandchildren about the potential dangers of posting images on social media that can be taken out of context. “I do think that we have to be careful,” she said.

But “being careful” is not going to stop people from making revenge porn, and it’s certainly not going to address a centuries-long culture of pretending that just because you’re a political or public figure, you can’t be human. While the future of the SHIELD Act (or any other federal law) remains off the books, the victims of NCP continue to navigate life after the violation. And not only do they have to face inconsistent, and sometimes insufficient, state level laws, they also have to exist in a shame-based system that has always deemed sexuality — particularly a woman’s — as a liability.