DES MOINES, Iowa – If you associate with enough attorneys, professionally or personally, at some point you’re almost certain to hear some version of an old law school saying that goes something like “hard facts make bad law.”
Typically, this old saw is trotted out when discussing a possibly well-intentioned piece of new legislation designed to address some social ill, but due to its excessive breadth, vague terminology or both winds up implicating a lot more human activity and behavior than its authors intended.
Of course, regardless whether you spend much time around lawyers, there’s another adage that helps explain why legislatures tend to concoct bad law as a response to hard facts: “If your only tool is a hammer, all your problems become nails.”
In the context of revenge porn, the goal seems simple enough; those of us who don’t publish, consume or distribute revenge porn and think it’s awful to do so would like to establish some legal framework under which people who do publish, consume and distribute the stuff can be duly punished.
Unfortunately, that there’s broad agreement about whether revenge porn is a terrible thing doesn’t make the challenge of writing effective legislation any easier — nor does it make our legislators any better at writing law.
We saw this in Arizona, where state legislators somehow managed to write a revenge porn statute that was so poorly crafted it satisfied neither anti-revenge-porn activists who are desperate to see something done about the problem, nor the free-speech-minded civil libertarians who are wary of legislatures going too far in their efforts to combat revenge porn.
For the latter group, the law was written far too broadly, such that it could be construed to apply to bookstores that sell collections of old erotic photography should there be people depicted therein whose consent for distribution of the images has not and cannot be obtained — in some cases because the individual depicted has been dead for decades.
As for why those leading the charge against revenge porn weren’t wild about Arizona’s law: In the original iteration , there was no statutory language making clear that publishing such material could be construed as illegal for those who had authored the images in the first place. This left open the possibility of one member of a couple taking explicit pictures of the other with that person’s affirmed consent, then later vindictively posting the images online once the relationship had ended. As loopholes go, this one was impermissibly, even laughably, large.
Ultimately, Arizona had to go back to the drawing board altogether with its revenge porn legislation after a series of embarrassing events which concluded with the legislature closing its session without voting on an amended version of the law — something it had promised the court (and the lawsuit’s plaintiffs) it would do as part of an agreement that halted an ACLU lawsuit challenging the flawed 2014 law.
On the first of July, a new revenge porn bill went into effect in Iowa, and while to my knowledge it hasn’t been challenged in court, certain provisions of the law strike me as sufficiently problematic (potentially, at least) we may yet see a challenge once the law starts being applied.
While the new law requires the revenge porn perpetrator have the “intent to threaten, intimidate or alarm” the victim for the offender to be considered in violation of the law, some attorneys are concerned a broad reading of the statute could implicate people who share their “sexting” sessions with third parties.
“The new law will rightfully give much-needed protection and relief, but calling it ‘revenge porn’ may mistakenly lead some people to believe it doesn’t apply to them,” Iowa attorney and Bremer County magistrate Karen Thalacker wrote in a recent column. “Teenagers and young adults who have grown accustomed to the careless and damaging sharing of these types of photos and videos via text, Snapchat and Instagram may not realize that the law has changed. They may find themselves charged with a crime and their fate in the hands of a jury that is left to decide what they intended when they shared the photo or video.”
While one would like to think no prosecutor would (knowingly) bring a revenge porn case under such a law against a person who shared images without the intent to threaten, intimidate or alarm the person depicted in the images, I’d also like to believe no prosecutor would fight tooth and nail to maintain an unjust and wrongful conviction after it has been exposed as such, but we’ve seen prosecutors do this very thing, many times.
Some might think it’s no big deal to be charged with a crime under a law like Iowa’s new revenge porn statute, provided everything gets sorted out in court and the charges are eventually dropped, or the trial leads to an acquittal. If you think this, however, I’m betting you’ve never been charged with a felony, let alone gone through a criminal trial.
As a practical matter, your court-established innocence is likely to be cold comfort by the time your name and face have been splashed across the internet as belonging to a revenge porn offender — not to mention when the final bill arrives for services rendered by your attorney(s).
Beyond the things I’ve identified above, I’ve just never been a big fan of inconsistent, state-by-state criminal statutes governing crimes that are likely to be interstate in nature to begin with. As things stand now, we’re approaching a scenario in which the legal parameters defining revenge porn could vary substantially between every state in the country. This prospect is no good for victims, accused perpetrators or the lawyers representing either of them.
So, while I’m all for legislatures acting against revenge porn, I believe what we need is not 50-plus different statutes shaped by the whims, biases and varying competence of disparate state legislators around the country.
What we need is for the U.S. Congress to address the issue from the top down, and to do so only following a careful and comprehensive consultation with victims’ advocates, civil libertarians and constitutional law experts alike.
Sure, any federal revenge porn legislation we’d get from Congress is likely to have its problems as well, but at least it would be a single flawed law, not 50 different ones, with which all parties involved must contend.
Image © Peter Skadberg.
