Candid Camera

02.25.14

New York Can't Kick Its Revenge Porn Habit

Ian Barber tweeted naked photos of his girlfriend—and got away with it, giving New York all the more reason to follow in the footsteps of California and New Jersey by implanting adequate revenge porn legislation.

Ian Barber failed his girlfriend’s trust and then New York State failed to protect her. She has been made to suffer twice. The first was on July 26, 2013, when Barber decided to tweet naked photos of her and to share those photos with her sister and her employer. The second was on Feb. 19 when a New York judge dismissed all criminal charges against Barber.

In New York’s first revenge porn case, Judge Steven M. Statsinger ruled that Barber’s behavior “while reprehensible, does not violate any of the criminal statues under which he is charged.”  The three charges against him were: aggravated harassment, dissemination of an unlawful surveillance image, and public display of offensive sexual material.

Reading through Judge Statsinger’s decision reveals why New York and, for that matter, every state is in desperate need of adequate revenge porn legislation. The current legal system does not sufficiently handle modern forms of cyber harassment, nor make allowances for the realities of modern dating and courtship.

The reality is that as technology becomes a more pervasive part of modern dating and sex, the issue of revenge porn will come up more often.

For one, the language of the law forces an incredibly narrow, if not misconstrued, understanding of the function of Twitter.

Statsinger dropped the charge of dissemination of an unlawful surveillance image in part because dissemination “requires more than the mere posting of an image on a social networking site such as Twitter.” Twitter has 241 million active users. One would think sharing an image on it would constitute dissemination.

Then again, most modern Internet users would think sharing a photo on Twitter would count as a public display, too. Statsinger dismissed the charge of public display of offensive material because “the terms of the statute clearly do not encompass either posting an image on Twitter—a subscriber-based social networking service,” which is a “private act.”

For the third charge, to qualify as aggravated harassment, the defendant must either directly communicate with the victim or “encourage others to do so.” Under that language, posting naked photos of your girlfriend to the Twitterverse and emailing them to her family and employers does not technically count as encouraging others to unwantedly contact her, though in effect it certainly can. While Statsinger acknowledges third parties contacted and showed the victim said photos, “there is no allegation that they did so at the defendant’s behest.”

Lost in all of this legal analysis is the nature of intent. Why else would Barber share naked photos of his girlfriend with her sister, her employer, and, more importantly, the millions of people on Twitter? You do something so twisted to shame a woman, hurt her career, and bombard her with a cyber stream of sexual and malicious remarks.

But it’s not just Barber’s intent that’s being ignored or dismissed—it’s his girlfriend’s. Another major factor that led to Barber clearance was the fact that he did not obtain the naked photos of his girlfriend through “unlawful conduct,” i.e. he did not secretly film her against her knowledge.

She consented to the photos being taken, however, but the issue of consent when it comes to use if a completely separate. In the eyes of the Manhattan court, it did not matter that she never gave Barber permission to share those photos.

In New Jersey, one of two states with revenge porn laws, you cannot disseminate nude or sexual photos of someone without his or her explicit permission. In California, the other state with a revenge porn law, it is less stringent, but still criminalizes the sharing of sexual or nude photos with the intent to cause emotional stress, regardless of how they were obtained.

New York and every other state in the country needs to have, at the very least, these explicit guidelines and not rely on inadequate, antiquated laws to carry out justice. Because, sadly, they won’t.

The reality is that as technology becomes a more pervasive part of modern dating and sex, the issue of revenge porn will come up more often. The answer is not to put the onus on women to assume every man will violate their trust when they share themselves sexually (though, you wouldn’t blame women for feeling this way based on the political and legal response to this harassment). Instead, we need laws that ensure men like Barber who act maliciously with the intent to shame, hurt, and, yes, harass women for their behavior are recognized and, most importantly, stopped.