Revenge porn is a criminal offense severely punished in California. The crime happens when a partner in a relationship decides to share nude pictures or videos of their current or former intimate partner without their consent to seek revenge. Some couples would film themselves in the act of sex or send each other nude photos. When their relationship turns sour, one of the aggrieved parties may decide to share the intimate pictures and videos to get revenge against the other. This act is usually designed to embarrass the other person, which is devastating to them. If you are faced with these allegations, you will need a criminal lawyer to defend you against them and avoid the severe penalties. At Orange County Criminal Defense Attorney Law Firm, we are committed and experienced to defend you against these allegations.

Overview of the Law on Revenge Porn

According to PEN 647(j)(4), a person that distributes or shares intimate material with other people without the consent of the person in the content is guilty of a criminal offense. Sharing of nonconsensual pornography or revenge pornography is a crime in California that is severely punished. Revenge porn is where a person wants to shame their partner or a former partner when the relationship breaks.

The intentional sharing of the person’s intimate body parts videos of them engaging in sexual acts such as sodomy, masturbation, sexual intercourse, or oral copulation is a criminal offense. The person that is sharing these materials also understands that they were private. But does so to create emotional distress, is guilty of the offense.

PEN 647(j)(4), however, does not apply in some instances. This law does not include selfies where a person records themselves or takes naked pictures of themselves. This law applies to the third party that makes the recordings only. If you receive and redistribute or share a pornographic video or image and you are not the one that took it, you will not be found guilty of this offense.

Websites that host revenge porn will also not be punished for hosting these materials that have been shared with them by another person. Individuals that hack or access these videos or photos through another person’s computer or phone will not be prosecuted under this statute even when they share them.

This law applies only in situations where the parties involved agreed and understood the videos or images remained private. However, if the victim never gave consent to be recorded or for the images to be taken, the law does apply. In cases where the victim was aware they were being recorded, it may be challenging to prove the other party understood the recordings or images were to remain private.

Additionally, this law applies only where the prosecutor can show the defendant wanted the victim to feel emotionally distressed, and the alleged victim did suffer. Proving the defendant intended to cause distress can be challenging for the prosecution unless the defendant admits to the offense.

Prosecuting Charges of Revenge Porn under PEN 647(j)(4)

For you to be convicted of violating this offense, the prosecutor must prove specific facts or elements of the offense. These are:

  • You have in your possession an image of an intimate party of a body of another identifiable person or pictures of the person engaging in any sexual activity
  • That you purposely distributed or shared the photos of the person electronically or by other means to other people
  • That you and the person in the pictures or recordings had an understanding that the materials are private and to stay between the two of you,
  • That you were aware sharing of intimate materials could result in the person suffering emotional distress
  • That your sharing of the confidential materials resulted in severe emotional distress to the other person.

According to this statute, the images do not have to have the intimate parts of the body fully exposed, but any parts of the breasts or genitalia that can be seen even though clothing that is not opaque.

The law also states that the person in the images or recordings must be clearly identifiable. This means, if the person in the image or records cannot be identified, the defendant is not guilty of the offense.

Penalties for Violating Laws on Revenge Porn

Typically, a violation of this statute is prosecuted on misdemeanor charges. If you get convicted of the offense, the penalties you will receive are harsh. Depending on the facts and circumstances of the offense, the judge decides on the punishments to give you.

When convicted of the misdemeanor charges, you are likely to be jailed for six months or less in county jail. In addition, you will be charged a fine of $1,000 or less. However, this fine is likely to increase once the other court charges are included.

If you had a prior conviction for this offense or the image is that of a minor, the penalties will be harsher. The judge can sentence you to a year in jail and be charged a fine of $2,000 or less.

Revenge Porn as an Aspect of Nonconsensual Pornography

As earlier stated, California prohibits revenge porn, and if you are found guilty of the offense, the penalties can be severe. Revenge porn is typically committed through electronic media. The perpetrator of the crime uses electronic means to share a digital recording or image of another person as a way of harassing them, causing them fear. In extreme cases, the distribution is aimed at leading the victim to injure themselves.

Revenge porn is also referred to as cyber exploitation. This is a type of nonconsensual pornography that is believed to be committed more by disgruntled ex-partners. Strangers can also be accused of nonconsensual pornography (NCP), where they hack into the victim’s devices or accounts and sharing the pictures they find.

Revenge Pornography and Harassment Through Electronic Media

With the advancement of technology, revenge porn is mostly shared by the use of electronic media or devices. If you are accused of using an electronic device to commit revenge porn, you will be charged with a misdemeanor offense. The elements a prosecutor must determine include:

  • The prosecutor must show that you used an electronic device to email, post, and share or disclose private information that identifies a person, which includes digital images without their consent or you send a message to harass them.
  • You send or shared the images through an electronic device to harass the victim
  • You intended to cause fear, intimidation, or pain to the victim or their family.

If these elements are determined, you will be charged with violating PEN 653.2, aside from PEN 647.(j)(4). These violations are raised against any person that uses electronic media to harass another. And in this case, for revenge porn.

In order to understand what the law says regarding distributing revenge porn via electronic communication devices or media, there are a few terms that must be elaborated according to the law. These are:

Electronic Communication Device

As used according to this law, it involves the use of cell phones, computers, web sites, internet, wireless devices, hybrid cellular, among others to others to distribute or share revenge porn.

Harassment

As used by law in California, harassment is knowingly and purposeful conduct aimed at a particular person that would be considered alarming, annoying, terrorizing, or tormenting under normal circumstances. The act of sharing intimate images of another person a form of revenge is considered harassment.

Sexual Act

The law on revenge porn states that you cannot distribute images or recordings of another person engaging in a sexual act without their consent. According to the law, any action that involves sexual intercourse, sodomy, masturbation, or oral copulation, among others, is a sexual act. When you distribute images of a person engaging in any of these acts without their consent, you violate the law.

Intentional Distribution

This is one of the critical elements a prosecutor must prove in getting you convicted of revenge porn. According to revenge porn laws as found under PEN 647(j)(4)b, you will distribute or share an image of another person unlawfully and intentionally or purposely when you have the intention to cause distress, and you did it knowingly and not by accident.

Intimate body part

An intimate body part based on revenge porn laws is any part of the body that is considered private. You would be charged with revenge porn offense if the image you shared or distributed had a portion of the anus, genitals, breasts of the victim.

Penalties for Harassment Through Electronic Device

As earlier stated, with the advancement of technology, most revenge porn offenses are committed through electronic media or devices. The prosecutor can bring another charge against you along with that of revenge porn. If you used electronic equipment to distribute the images or recordings, you would be charged with violating PEN 653.2.

This is a misdemeanor offense, and if convicted, you will face a possible county jail imprisonment lasting a year, in addition to a fine not exceeding $1,000.

Penalties for Using an Electronic Device Without Consent for Revenge Porn

As earlier stated, a disgruntled ex can hack into your computer or phone and use the images he or she finds there to harass you or embarrass you by sharing them. If this is the way the perpetrator committed revenge porn offense, in addition to revenge porn penalties, he or she will face more. These will include imprisonment for sixteen months or between two and three years. Additionally, the defendant will be asked to pay a fine of $10,000 or less. The judge can sentence the defendant to both jail time and fines or either of them.

Defending your Revenge Porn Charges

The laws governing revenge porn are complicated, and the prosecutor must prove various elements of the offense before a conviction is given. For this reason, you will need the services of an experienced lawyer to fight these allegations against you and avoid the penalties.

Your lawyer will evaluate the evidence the prosecution has and carry out investigations into the allegations. After gathering all the necessary information, he or she will come up with various strategies to fight the charges on your behalf. Some of the defenses will include:

The pictures or recordings do not have a clear image of the person

One of the elements necessary in proving these allegations is that the image of the person in the materials can identify who the person is. If you covered the face or the pictures you shared were cropped such that one could not identify the person in them, you cannot be convicted of the offense.

However, the statute allows for any other thing that could identify the person in the image. The person in the picture may have a distinct birthmark or certain clothes, or even the background could aid in identifying them. If this is the case, this defense will not be valid.

The Distribution of the Images or Recordings were not Intentional

Another element for one to get convicted of this offense is for the prosecution to show that you intentionally or purposely distributed the intimate materials in question. If the prosecution cannot prove this element, then you will not be found guilty of the offense. For instance, if you were emailing an image to market specific products you are selling and accidentally attached the said image, you will not be found guilty of the offense.

However, if you emailed the image and wrote some caption demeaning the person or talking about the picture, it then shows you knew the image you were sending, and you shared it intentionally. If that is the case, this defense will not apply.

The Shared Image did not Result in Emotional Distress to the Alleged Victim

Proving that the alleged victim suffered distress as a result of the shared images can be challenging to the prosecution. A lot of times, no physical evidence would be available that would show the victim indeed suffered distress. This means, your lawyer can use this as a defense to show that you did not intend to cause the alleged victim distress, and the victim never suffered pain as a result.

You had Permission to Share the Images or Records

If the person in the images gave you consent to share but later changed their minds, this could be a valid defense. Your lawyer can argue that the alleged victim had allowed you to share the images, and when they realized they had made a mistake later, they accused you of revenge porn.

However, for this defense to work, you must show evidence that this was discussed and agreed upon.

Consequences of the Conviction on your Immigration Status

Some of the crimes that affect the immigration status of a non-citizen are those of moral turpitude. The offense of revenge pornography does not qualify as a violent felony or a crime of moral turpitude. This means that even when you get convicted of the offense, your immigration status will not be affected in any way. Additionally, this offense will also not deem you inadmissible to the country.

Expungement of your Criminal Record

When you get convicted of this offense, the law allows you to get your record expunged. Under PEN 1203.4, when an expungement is granted, all the hardships with the conviction are removed. Your criminal record is erased, and you can confidently and legally claim never to have had a criminal conviction in the past.

Although everyone has a right to petition for an expungement, not everyone gets their petition granted. To get your record expunged, you must:

  • Completed your probation successfully and fulfilled all the terms of the probation or
  • You must have served your jail time penalty successfully

Your Gun Rights when Convicted of PEN 647(j)(4)

Not every crime affects gun rights. Revenge porn is a misdemeanor offense, and when you get convicted, it will be a misdemeanor. However, some felony convictions affect your gun rights in California. When you have a record on revenge porn, you will still be able to own a gun according to the law.

Related Offenses to Revenge Porn

Various offenses can be charged alongside or instead of revenge porn. These offenses include:

  • PEN 647i – peeking when loitering
  • PEN 647j – Criminal invasion of privacy
  • Federal video voyeurism law – U.S Code 1801

PEN 647i Violations – Peeking when Loitering

This statute prohibits some level of invasion against individuals that expect privacy. The law makes it a criminal offense to peep through the window or door of a structure that is inhabited, and it is a privately owned property.

In particular, a person can be accused of this crime when:

  • They linger, delay, wander or prowl on another person’s property,
  • Without any legal reason to be there and
  • The defendant peeks through the door or window of a building occupied by people.

In violating this law, it does not require there to be a person inside the structure as you peep. But, as long as there are people that live there, you violate the law.

Revenge Porn as an Aspect of Domestic Violence

Revenge porn in California is classified as a domestic violence offense. This is especially so when the victim and the perpetrator have had a sexual relationship. The rationale of classifying this offense under domestic violence is because a threat to publish or share confidential videos or pictures against the will of the other person is an act of abuse. This is similar to emotional or physical abuse.

A revenge porn victim is considered powerless because they cannot stop their former or current partner from hurting them in such a manner. This is the reason why revenge porn significantly impacts cases dealing with family law, just like other domestic violence types do.

How Revenge Porn Allegations or Conviction Affects Family Law Cases

For instance, the victim of revenge porn can seek a restraining order that bars the perpetrator from coming to hear them. When a restraining order is taken against you, your image before the court will be tainted. Your former spouse will seem like he or she was in an abusive relationship. The court, in this case, is likely to rule in his or her favor.

In case you are involved in a custody battle with your former spouse or partner, the revenge porn charges you are facing will affect your case. This may make the judge believe the children are better off with the other parent. Your character, like your reputation for committing this crime, is thought not to be good, meaning you will not be a good influence on the children.

Other Remedies for Revenge Porn

If you get convicted of this offense, you will receive several penalties that may include jail time and fines, as earlier discussed. Additionally, a conviction will leave you with a criminal record that will require another legal process of expungement to get it deleted.

However, it is essential to understand that the alleged victim of revenge porn can use civil remedies against you. Civil courts require less proof of the offense as compared to criminal courts. This means the alleged victim may find a favorable judgment against you in a civil court.

The alleged victim can pursue a protective order against you, which can be affected faster than it takes to conclude a criminal case. The victim of the crime can also seek compensation for suffering and pain. This is in addition to the shame they have suffered because of the shared material. The victim is allowed to pursue other damages they believe they suffered due to your actions, such as lost income.

The victim can also get an injunction against you that serves to force you to remove all images and videos you shared from the internet. When you fail to do this, you will face more consequences as a result. For this reason, having a lawyer to defend you against these allegations and prevent you from getting a conviction is to your advantage.

Find a Orange County Criminal Defense Lawyer Near Me

Allegations of revenge porn, if proven, can result in severe penalties. The consequences of having a criminal record are serious, aside from destroying your reputation. You can fight these allegations and avoid a criminal record by hiring a defense lawyer. At Orange County Criminal Defense Attorney Law Firm, we will help you fight these allegations and ensure you are fairly tried. Reach us at 714-740-7848 and allow us to discuss your case further.