Posted on January 14, 2018

California “Revenge Porn” Law – Penal Code 647(j)(4) PC

California implemented Penal Code 647(j)(4) pc codifying the charge of “Revenge Porn.” The statute makes it unlawful for someone to disseminate photos or videos of someone else’s intimate body parts without their consent.[1] Moreover, the statute makes it a crime to disseminate a person engaging in sexual intercourse or performing sexual acts without their consent.

The description “revenge porn” obtained its name from those who intentionally disseminates sexual photos or videos for the purposes or public embarrassment and ridicule. This intentional act often results from a breakup from a previous dating partner. To be convicted of PC 647(j)(4), the District Attorney must prove the following elements:

  1. You intentionally disseminated photographs or video depicting another identifiable person engaging in a sexual act or of their intimate body part;
  2. You did not have consent from the other person to post the photo(s) or video(s);
  3. You knew or should have known your act would result in serious emotional distress to the other person;
  4. The other person suffered serious emotional distress.

Legal Defenses to Penal Code 647(j)(4) PC Charges

  • First Amendment: Due to the recent enactment of this statute, it remains unclear whether it conflicts with the First Amendment – freedom of speech. Because pornographic material can be considered “art,” the appellate courts have yet to rule on whether this statute passes constitutional muster.
  • Serious Emotional Distress: Understandably, someone who discovers private sexual photographs or videos of themselves over the internet is going to be upset. However, being “upset” and suffering “emotional distress” are different forms of reaction. Furthermore, the statute requires a higher showing of emotional distress, in that the purported victim must suffer serious emotional distress.
  • Intent: The act of publishing or disseminating the material must be done with the intent to do so. Thus, accidental uploads or if the dissemination was the product of someone else, then your conduct does not conform with the statutory requirements.
  • Consent: Consent may be given by the purported victim and if so, then you are not guilty of this offense. It becomes an arguable issue if your accuser at some point previously permitted you to disseminate photos or videos of similar sexual depiction in the past. And this charge only applies in circumstances where the parties have agreed or understood that the images or videos were to remain private.
  • Sexual Act or Intimate Body Part: The crime requires the photographs or videos to depict your accusers intimate body part(s) or engaging in a sexual act. Photos or videos depicting kissing, your accuser in a bathing suit, or not of any sexual body part will not suffice. The law requires intimate body part – e.g., breasts, buttocks, or genital areas.
  • Knowledge: You may have not known or did not reasonably believe that uploading the material would cause the purported victim to suffer serious emotional distress. It is not uncommon for women to consent to their nude photos being uploaded to social media or internet websites for art purposes. If you continued to do so, without their consent, then it may be reasonable to infer that the alleged victim would not suffer serious emotional distress.
  • Redistribution: The crime is punishable to those who directly disseminate the material, not those who merely redistribute the material. For instance, a person who redistributes nude photos to a pornographic website, that was lifted from another public source, does not fall within the statutory scheme of this crime.
  • Unidentifiable: If the material does not depict an identifiable person, then you are not guilty of this crime. Unidentifiable persons also include nude drawing or sketches of your accuser.
  • Other defenses: You distributed the images as part of reporting the unlawful activity. Or you disseminated the images in compliance with a subpoena or other court order for the use of a legal proceeding. The distribution was made in the course of a lawful public proceeding.[2]

Punishment & Sentencing

PC 647(j)(4) is punishable as a misdemeanor carrying up to six (6) months in the county jail and a fine up to $1,000. However, the penalties for this offense carry up to one (1) year in the county jail and a fine not exceeding $2,000 if either of the following are shown:

  1. You suffer from a prior conviction for this offense; or
  2. The purported victim was a minor.

Contact Us to Schedule Free Consultation

If you have been arrested or cited for revenge porn under penal code 647(j)(4), then contact a respected and experienced Orange County criminal defense attorney at the Law Offices of John D. Rogers to schedule a free confidential case evaluation.

 

Legal References:

[1] Penal Code 647(j)(4) – (“A person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.”)

[2] See Penal Code 647(j)(4)(D)(i-iii).

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