In 2013, the California lawmakers passed a “revenge porn” law that makes it a crime for someone to post online, spread or disperse photos or videos of another person’s intimate body parts without their consent. In simple language, “revenge porn” is a term used for posting intimate photos of another person on the Internet to get even with them. In theory, the revenge porn law gives prosecutors a tool to protect victims whose reputation has been tarnished by someone they once trusted. Originally the law only covered photos taken by another person, but it was expanded to include selfies. The law also criminalizes the act of disseminating another person engaging in sexual intercourse or performing sexual related acts without consent. The revenge porn law is covered under California Penal Code Section 647(J)(4), and is considered to be a form of “nonconsensual pornography.” This law has similar elements of the crime of invasion of privacy laws, where someone secretly records sexual videos or images of another person without them knowing or giving consent. However, they are not the same as revenge porn laws. Why?
With revenge porn, the victim initially gives consent to take sexually explicit photos or records them while performing sexual related acts with a mutual partner understanding the images or videos will remain private. However, the person who recorded the sexual related material distributes it without their consent. Typically, the distribution of images and videos occurs by posting them on the Internet without their knowledge or consent. In most revenge porn cases in San Diego County, the criminal act occurs after a sexual relationship ends abruptly on conflicting opinions. One side of the relationship, typically the male, wants revenge at the victim’s expense and decides to post online the sexually related images or videos. If you have been accused of revenge porn, you need to call the Law Offices of Mark Deniz at 858-751-4384.
First Revenge Porn Conviction in California
In December 2014, the first revenge porn conviction occurred under the new California law. In this case, a Los Angeles man who had posted topless photos of his ex-girlfriend online was convicted under California Penal Code Section 647(J)(4). He was convicted of violating two restraining orders and California’s “revenge porn” law. Los Angeles County prosecutors claim his ex-girlfriend obtained a restraining order against him in 2011 after he started sending her harassing text messages. Later, using a fake name, he posted a topless photo of her of her employer’s Facebook page, calling her “slut” and a “drunk”. After the conviction, he was sentenced to a year in LA county jail and three years probation. He was also ordered by the court to attend DV counseling and stay away from the victim.
California Penal Code Section 647(J)(4) – Revenge Porn
Under California Penal Code Section 647(J)(4), the crime of revenge porn is legally defined as follows:
“Any person who intentionally distributes the image of the intimate body part of another identifiable person, or an image depicted them engaged in sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation by the person in which the person depicted participates, in circumstances where they agree or understand the image will remain private, the person then distributes the image and knows the distribution of the image will cause serious emotional distress, is guilty of revenge porn.”
An “intimate body part” is any portion of the genitals, anus, and in the case of a female, it includes any portion of their breasts that is either covered or uncovered or even clearly visible through clothing. By law, you “intentionally distribute” an image if you personally distribute it, arrange it, specifically request it, or intentionally cause another individual to distribute it.
Elements of the Crime
In order for the prosecutor to convict you of revenge porn, under PC 647(J)(4), they must be able to prove all the elements of the crime. These include:
- You had possession of an image of the intimate body part of an identifiable person, or them engaging in sexual intercourse, sodomy, oral copulation or masturbation;
- You had a mutual understanding the image would remain private;
- You intentionally distributed the image;
- You knew, or should have known, the image distribution would cause serious emotional distress to the person; and
- The victim depicted actually suffers serious emotional distress.
It’s important to note this law also applies when the image distribution would likely incite harassment by a third party. This means knowing that a course of conduct will be directed at the victim that any reasonable person would consider annoying or alarming, when the distribution serves no legitimate purpose. Prior to opening his law firm, Attorney Mark Deniz was a deputy district attorney for almost 10 years with an intimate knowledge of the various consequences a conviction may cause. Mark Deniz will aggressively defend your case by exploring every angle and argument to ensure you have the best defense possible. Contact the Law Offices of Mark Deniz at 858-751-4384 to get the ball rolling.
Legal Defenses
Out firm can use a variety of legal strategies to defend you against charges of revenge porn. These potential legal defenses include:
No intent – one of the main elements of the crime is that your act was to intentionally distribute a sexual related image or video. In some cases, we might be able to show the upload was accidental or posted by another person using your name. In some cases, we might be able to show the computer or device where the images were stored was hacked. In other words, you had no specific intent on releasing the images publicly.
Consent – the legal definition of revenge porn includes language that criminal charges apply to situations where it was understood the images or videos were to remain private. In some case, we might be able to make a reasonable argument the victim had previously given consent to post the sexually related material and there was no mutual understanding the material would not be distributed. In fact, we might even be able to show both parties agreed to the posting of the material. In simple terms, the victim gave consent to post the images.
Unidentifiable victim – in order to be convicted of revenge porn, the sexual related material must be of an “identifiable person.” In some cases, we might be able to show the individual in the images of videos can’t be positively identified. If we are able to cast doubt about the material depicting an unidentifiable person, then you cannot be found guilty.
No emotional distress – our attorneys might be able to make the argument you did not specifically intend to cause any emotional distress to the victim, or the victim did not actually suffer serious emotional distress. Since the prosecutor has to prove the victim sustained substantial emotional trauma, we may be able to cast reasonable doubt as to the level of distress by the victim.
Contact an Experienced San Diego Defense Attorney
If you are facing allegations of revenge porn, in violation of California Penal Code Section 647(J)(4), you should contact the Law Offices of Mark Deniz. Prior to opening his law firm, Attorney Mark Deniz was a deputy district attorney for almost 10 years with an intimate knowledge of the various consequences a conviction may cause. Mark Deniz will aggressively defend your case by exploring every angle and argument to ensure you have the best defense possible. Contact the Law Offices of Mark Deniz at 858-751-4384 to get the ball rolling.
