Legal Responses to Nonconsensual Pornography

Current policy in the United States.

Posted Feb 24, 2020

Technological advances have created new avenues for the perpetration of sexual violence. The widespread availability of cameras has made it easier to take covert recordings of an individual’s intimate body parts (i.e., upskirting and downblousing), and whether sexually explicit images are recorded with or without an individual’s consent, growing access to the Internet has facilitated the nonconsensual dissemination of those images (i.e., revenge porn). Thus, politicians and policymakers who wish to ensure that victims of sexual violence are protected need guidance to ensure that criminal laws in their jurisdictions are keeping pace with technology.

Are current laws falling short?

Bell and colleagues (2006) analyzed federal and state laws dealing with upskirting and downblousing, but in the decade-plus since they published their findings, this area of law has been the focus of a great deal of attention and change. Moreover, Bell and colleagues did not address whether the laws offered protection to victims of revenge porn. Thus, I conducted an exploratory content analysis to determine whether current federal and state statutes adequately address the issue of nonconsensual pornography, broadly defined (for more a detailed description of this research, see Najdowski, 2017).

The Research

A total of 75 criminal statutes pertaining to nonconsensual pornography from across the United States, including the federal government, each of the 50 states, and the District of Columbia, were compiled between August 2015 and February 2016. All statutes were coded to ascertain how the nonconsensual pornography offense was classified and whether certain stipulations were included.

Specifically, it was noted whether statutes require that nonconsensual pornography recordings were made surreptitiously (i.e., clandestinely, furtively, secretly, or without the victim’s knowledge); a specific form of recording is explicitly referenced; the victim must have been partially nude, nude, or engaged in sexual activity; the victim must be identifiable in recordings; the offense caused harm to the victim; or the perpetrator had a specific motive underlying intent for committing the offense.

Results revealed that 27 percent of statutes identify nonconsensual pornography as a problem related to the improper recordation or dissemination of sensitive images or messages, 23 percent as a privacy violation, 20 percent as voyeurism, and 11 percent as surveillance, eavesdropping, or peeping. Another 9 percent of statutes referred to nonconsensual pornography using more than one of these classifications, and a final 11 percent called the offense by a variety of other names (e.g., “disorderly conduct,” “harassment by telecommunication device,” “sexual cyberharassment”). In line with the inconsistency in the terminology used, there is variability in how the offenses are classified. Thirty-three percent of jurisdictions treat nonconsensual pornography as a misdemeanor, 23 percent as a felony, and 41 percent as either a misdemeanor or felony depending on the circumstances.

Considering issues related to the nature of the recordings themselves, 33 percent of statutes require that recordings be made surreptitiously. With regard to the type of recordings that may constitute nonconsensual pornography, the large majority of statutes (89 percent) clearly prohibit both videographic and photographic recordings. Still, 5 percent of statutes bar only photographic recordings, and another 5 percent mention neither type of recording, referring only to problematic observations or communications.

Another set of issues concerns assumptions about the conditions that would result in a privacy violation. According to 29 percent of statutes, nonconsensual pornography must involve victims who are either partially nude, nude, or actively engaged in sexual activity. Another condition expressed in 16 percent of statutes is that victims must be identifiable from the recordings.

Also of importance, 12 percent of statutes define nonconsensual pornography as a criminal offense only if it is harmful to the victim.

Finally, 59 percent of statutes include language detailing the perpetrator’s intent for committing the offense. Of these statutes, 21 percent require that the perpetrator committed the offense for the purpose of invading the victim’s privacy; 43 percent specified that the goal was to psychologically harm the victim; 27 percent specified that the perpetrator’s motive was to threaten, harass, or coerce the victim; 16 percent identify financial motives; and 57 percent denoted that the perpetrator’s motive was sexual entertainment or gratification. (All categories of intent were coded non-mutually exclusively.)

Discussion

My research revealed a lack of consensus in the name of the offense targeted by the statutes, just as Bell and colleagues (2006) found more than 10 years ago. There was also a fair amount of variability in the class of crime nonconsensual pornography is considered to be. The level of inconsistency in the names and classification of offenses across statutes reflects a lack of conceptual clarity about the nature of the behavior being criminalized. This poses a problem for victims, who may struggle to have their experiences recognized, and police and prosecutors, who may be unclear about when non-consensual pornography has crossed the boundary between legal and illegal behavior.

Moreover, results reveal that current laws are plagued with a variety of caveats that make prosecution of nonconsensual pornography difficult, suggesting that legal reform addressing this problem has been insufficient. For example, statutes that require actors to behave covertly are incongruent with the fact that nonconsensual pornography can be recorded easily in plain sight, and provide a clear example of how the technology of modern society has outpaced our laws. This and the other barriers to prosecution identified in this analysis warrant further consideration by policymakers.

Yet it is not sufficient to assess simply whether the laws in any given jurisdiction offer protection to victims of nonconsensual pornography. When they fail to do so, it is also necessary to understand why. Thus, an important goal for future research should be to explore how current policy has been shaped by structural patriarchy, and how future policy development might be affected by framing the issue as violence against women.