What is Nonconsensual Pornography?

Written by: Alexandrea Scott, Program Attorney, Break the Cycle

“Would it be alright with you if I look at the picture he posted? I can give you better information if I know exactly what he said and what the picture looks like.” When I met Elena, she was only 15 years old. I knew from the referral that Elena’s ex-boyfriend, Marcus, had shared a nude picture of Elena on Instagram after she broke up with him.* Elena never intended for anyone other than Marcus to see her private picture, but Marcus had shown it to friends and classmates. By the time Elena met me, she knew the drill. She had already bitten the bullet and shown the image to her parents, her advocate, and more than one law enforcement officer.

Nonconsensual pornography can take many forms, but each case has one thing in common—the offender has shared a private image of the victim without the victim’s consent. At Break the Cycle, I represent young survivors of dating and domestic violence, stalking, and sexual assault, ages 12 to 24, in civil protection order, family law, and Title IX matters. When survivors ask Break the Cycle for help with nonconsensual pornography, most frequently it is because an ex-partner has shared a private image of the survivor to get revenge after a break-up. Not surprisingly, nonconsensual pornography statutes are commonly referred to as “revenge porn laws.” However, “revenge porn” can be a bit of a misnomer since offenders are sometimes motivated by something other than revenge, such as financial gain. The forms of nonconsensual porn run the gamut. Below are just a few examples, some of which are from our cases at Break the Cycle.*

• Tiana’s angry ex-partner posts a private image of Tiana on social media; Tiana’s face is not in the picture and Tiana is not identified by name, but the comment on the image reads: “This girl goes to Roseville Tech and she’ll go out with anybody;”
• Posing as Bridgette, Bridgette’s ex-partner posts a private image of Bridgette on Craigslist with her home address, stating that she wants to have sex with strangers;
• Jess’ partner trades unidentified private images of Jess online in exchange for sexual images of other people;
• Imani’s computer was hacked by a stranger who captured private images of Imani, and is now threatening to post the images if Imani does not pay a ransom.

Fortunately, efforts to stop nonconsensual pornography are gaining traction. Thirty-four states and the District of Columbia have passed legislation making nonconsensual pornography a crime (https://www.cybercivilrights.org/revenge-porn-laws/). Minor survivors have additional protection under federal and state laws prohibiting child pornography.

The laws prohibiting nonconsensual porn vary by jurisdiction. Unfortunately, these laws are still in beta testing and, as a result, many acts of nonconsensual porn may slip through the cracks. For example, when Elena’s abuser, Marcus, posted Elena’s private image to Instagram, he covered Elena’s private areas with Emojis. In many jurisdictions, this nude image of Elena would likely fall outside a criminal statute’s definition of pornography.

The Risk of Retaliation and Exposure

Fortunately, a survivor of nonconsensual porn has many legal options: pressing criminal charges; seeking a protection order or another civil remedy; pursuing administrative remedies via an employer or a school pursuant to the institution’s own policies and procedures as well as federal and state law; and requesting that the platform where the image was posted (e.g. Facebook) take down the image and suspend the abuser’s account pursuant to the corporation’s “takedown policies.”

Unfortunately, none of these options can guarantee a survivor’s protection in the short-term. An abuser’s distribution of a victim’s private image is a bell that cannot be unrung. Many survivors choose not to pursue a protection order or criminal charges because they are afraid the abuser will retaliate by posting more pictures in more places with more of the survivor’s personal information. This fear is well-founded. In many of my cases, abusers will send my clients messages along the lines of “the cops can’t stop me” and “I’m not afraid of any court.” Where there’s a will, there’s a way, and many abusers will not be deterred. A court can sentence an abuser to incarceration, but, unless an abuser is detained during the proceedings, an abuser has the ability to share the victim’s private images up until sentencing. In some cases, as with other forms of abuse and harassment, an incarcerated abuser may continue to harm a victim via third parties. Law enforcement can confiscate an offender’s phone, but the abuser might have the victim’s private images stored elsewhere. A website can remove images and suspend the abuser’s account, but many third parties might have already seen the victim’s private images, downloaded them, and posted them to other websites. Sometimes, where an abuser’s attacks seem to have subsided, the preferred option is to hold off on any court actions.

The possibility of wider distribution of a private image is especially concerning for young survivors. Schools are tightknit communities, and it can be impossible for a young person to avoid the ripple effect of nonconsensual pornography. Many of my clients face more harm than mere ridicule or gossip. In several instances, I have seen dating abuse or sexual assault by one person morph into bullying by peer groups. Often, when my client ends an abusive relationship and seeks help, the abuser will recruit allies who will cyberbully or threaten to assault (or “jump”) my client.

In addition to worrying about their peers, young survivors also have to worry about their parents. Oftentimes, the private images at issues are created with the survivor’s knowledge and consent. Young people may choose not to seek help or pursue legal options because they do not want their parents to find out about their romantic life. The consequences young people fear may be serious. For example, LGBTQ+ youth may face violence, homelessness, or other abuse if they are outed to their parents.

Evidence

Regardless of the risk of retaliation and exposure, many survivors choose to pursue court remedies. Some survivors decide getting a protection order or pursuing criminal charges is the safest course of action. For others, they want justice. Because of the complex issues involved in making these decisions—many of which only the victim can fully understand—it is essential for advocates, criminal justice system professionals, and judges to respect the course of action victims choose.

Much of the evidence in nonconsensual porn cases involves social media. Litigants, advocates, and courts alike can find social media evidence to be confusing or intimidating. But dealing with social media evidence can be easier than it seems. For example:

• Authenticating a screenshot of a social media page is very similar to authenticating a run-of-the-mill photograph;
• A survivor can testify as a lay witness about how certain social media platforms work and even demonstrate them for the court;
• When it’s not possible to get high-tech proof that an abuser posted a private image (like an IP address), the connection between the abuser and the post can be achieved via circumstantial evidence (like the vocabulary used in the post).

Oftentimes, an abuser will post a private image to the Internet anonymously. How can a victim or counsel prove it was the abuser who posted the private image? There are several ways that a litigant or counsel can demonstrate a sufficient connection between the abuser and the anonymous post. For example:

• Context and timing: For example, an abuser accused a survivor of cheating, and the survivor ended the relationship. The next day the abuser posts a private image of the survivor with a message that reads: “Forget this cheating girl.”
• Vocabulary, turns of phrase, patterns of speech, consistent misspellings: Based on past communications (like text messages), a witness who knows the abuser can testify to common words the abuser uses.
• Nicknames: For example, a survivor’s former partner often called her “Angel Face.” The abuser posts a private image of the survivor with a comment that reads: “I guess Angel Face ain’t no angel.”
• Threats: For example, an abuser threatens to reveal private images in a certain manner, and then the images are revealed in that manner.
• Admissions: An abuser may admit to a witness that the abuser posted the image.
• Email address connected to fake accounts: Oftentimes, abusers will create fake or anonymous accounts to post nonconsensual porn. Luckily, it is sometimes possible to discern the email addresses connected to those accounts, which can draw a connection to the abuser.
• Tracing IP addresses: Unfortunately, it is cumbersome and expensive for survivors seeking civil remedies to procure high tech evidence like IP addresses. However, this option is available. Generally, the Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701–2712) bars survivors from obtaining the content of an abuser’s communications. However, it may be possible in some cases to procure other information—such as IP addresses, dates, and times—from a communication company (e.g., Verizon). But for non-government entities, seeking such information may cost a substantial sum of money.

Luckily, despite an array of challenges, survivors have several options for eliminating nonconsensual porn: using corporate takedown policies, pressing criminal charges, and seeking civil remedies like a protection order. Communities are replacing victim-blaming condemnation with remedial options and compassion, and the law is keeping pace.

Suggested Reading and Resources

• The Attorney Fighting Revenge Porn, The New Yorker (http://www.newyorker.com/magazine/2016/12/05/the-attorney-fighting-revenge-porn)
• Cyber Civil Rights Initiative (https://www.cybercivilrights.org/online-removal/)
• Legal Guide (https://arstechnica.com/tech-policy/2017/02/if-youre-a-revenge-porn-victim-consider-this-free-helpful-legal-guide/)

* Names and other identifying information have been changed.