Arizona passed a new law this year designed to fight what is known as revenge porn, where nude / sexually explicit images or videos of people – usually women – are published on the internet without their permission, generally by jilted lovers or other enemies. This is a despicable act to be sure, and yet another example of where our legal system in the 21st century is struggling to keep up with the expanding world of technology and the internet. At first glance, the law sounds fairly straight forward, but critics say it is overly broad and open to abuse by authorities.
“It is unlawful to intentionally disclose, display, distribute, publish, advertise, or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.”
Though the law includes exceptions for medical and law enforcement purposes, it does not include exceptions for photos that are newsworthy or artistic, and it does not require that the subject has been harmed.
A rape victim might be guilty of a felony for sharing a nude photo of her rapist with anyone other than police, the lawsuit says. Photos of a Hollywood star’s cleavage may meet Arizona’s definition of “state of nudity,” the suit says, and an image of a person touching his or her own buttocks may constitute “specific sexual activities.”
The ACLU is fighting this particular piece of legislation, and while I frequently find them to be barking up the wrong tree with a decidedly biased perspective, in this case they might have a point.
Which of the following could land you a felony conviction in Arizona?
– Showing images of naked prisoners tortured at Abu Ghraib;
– Linking to the iconic Pulitzer Prize-winning photograph of “Napalm Girl,” showing an unclothed Vietnamese girl running from a napalm attack;
– Sharing a close-up photo of a woman’s breast with a breastfeeding support group;
– Waving a friend over to see a cute naked baby pic — like the one you see on this page.
Unfortunately, the answer is all of the above. That’s because Arizona recently passed a law that makes it a felony — and potentially a sex offense — to share any image of nudity or sexuality before you get consent from every person pictured.
Pornography has historically been a troublesome area when it comes to the law, and privacy issues can be complicated as well. It’s all well and good for us to look at a specific instance of alleged revenge porn and say, Yep. That should be a crime. But when it comes to codifying that into the law books, things get a bit more dicey. We frequently find ourselves falling back on the often quoted notion of I know it when I see it. Unfortunately, there are gray areas, and not everyone sees things the same way.
We can either leave laws like this on the books as written and trust that no police officer, prosecutor or judge will ever take something which may be generally harmless and prosecute it, or find a way to insert more protections into them. The danger there is that if you put in too many qualifiers, the rule may wind up essentially toothless. While I hate to say it, perhaps the the only way to handle this fairly is to expand the concept of protection of personal images to the point where nobody can publish images of anyone else without their full consent. But even that is problematic if the images are captured in a public place and the publisher is not deriving any profit from them. Still, treating this crime as a theft of likeness might be easier than trying to wrangle the question of what constitutes pornography to the ground yet again.