Using Revenge Porn Laws to Recover Damages for Injuries and Mental Anguish
Understand Your Options Under Criminal and Civil Law When Someone Publishes Intimate Images or Videos Without Your Consent
The increasing use of the Internet and social media, combined with the ease of taking and sharing digital photographs and videos by smartphone or tablet, has resulted in a rise in revenge porn – sharing intimate images and videos without a participant’s consent.
Indeed, hundreds (if not thousands) of websites are devoted to user-generated images and hosting nonconsensual pictures of nudity or sex.
In addition, email and social media allow the dissemination of nonconsensual pornography through private networks.
Revenge porn can affect anyone who has taken or shared intimate photos or videos – even celebrities.
And the spread of private, personal images can result in humiliation and chronic mental health consequences.
This article explains the legal remedies available to victims of revenge porn under federal and state law, focusing on Virginia.
Though many state legislatures (and even Congress) have enacted or strengthened laws criminalizing revenge porn and creating civil actions for victims, the available remedies remain inadequate. For example, the statutes do not guarantee that websites take down harmful images created or distributed without the victim’s consent. But they are a start.
Keep reading to learn more about your options under criminal or civil law when someone publishes intimate photos or videos without your consent.
And if you would like a free consultation with a top-rated personal injury attorney, contact our firm today. We help victims of intentional torts recover monetary damages.
What is Revenge Porn?
The term “revenge porn” describes the distribution and publishing of nonconsensual pornography (sexually graphic images or videos).
Nonconsensual pornography includes photographs, videos, images, and other material showing sexual activity, erotic behavior, or nudity that are created or distributed without the consent of one of the participants in the material. It is not limited to photographs or images depicting some sexual activity. It also includes pictures or recordings of nudity or undressing.
Photographs and images may be nonconsensual in one of the following ways:
Images Taken Without a Participant’s Consent and Subsequently Distributed
This category of nonconsensual pornography includes:
- Secret recordings of consensual sexual encounters, such as by using a hidden camera
- Images or videos obtained by threatening the victim (victim coercion): For example, the perpetrator tells the victim he will report the victim’s drug use to her parents if she refuses to send a nude photograph.
- Recordings of sexual violence or assaults facilitated by alcohol or date rape drugs
Consensual Images or Videos Distributed Without a Participant’s Permission
This second category of nonconsensual pornography includes material made by consenting participants for their enjoyment, then later distributed without one of the participant’s consent.
For example, a wife texts a nude selfie to her husband, expecting the image to remain private and confidential.
A few years later, the couple divorces.
Upset over the divorce terms, the husband sends the ex-wife’s nude selfie to her employer, coworkers, friends, and family members. He even publishes the photograph online on an amateur pornography website.
The husband’s acts cause public and professional humiliation for the wife, resulting in depression and social isolation.
These acts constitute revenge porn.
Though the wife consented to create and send the photo to her husband, she did not agree to distribute that photo to others.
Does Revenge Porn Require a Desire to “Get Even” or Retaliate Against the Victim?
No.
Though commonly accepted, the term “revenge porn” can be misleading, which is why many people use the phrase “nonconsensual pornography.”
Perpetrators of revenge porn may not be motivated by a need for retribution.
Instead, the perpetrators might publish nonconsensual pornography for profit or entertainment because they are bored.
The most significant feature of revenge pornography is that it involves sharing intimate photos or videos without a person’s consent.
How Common is Revenge Porn? Understanding the Problem’s Scope
Revenge porn is a widespread problem affecting millions of Americans, particularly women.
For example:
- Another study found that one in twenty U.S. adults reported being the perpetrators of image-based abuse.
- People ages 15-29 are most likely to report being the victim of publicly posted intimate images without consent or having been threatened with image sharing.
How Revenge Pornography Affects the Victim
Revenge porn can cause severe health problems for victims – mentally and physically, given the intimate nature of the material and betrayal of trust involved and the potential that the disseminated videos or photographs may haunt victims throughout their lives. Indeed, erasing explicit pictures and videos from the Internet can seem impossible.
Unsurprisingly, revenge porn victims often experience some or all of the following:
- Emotional distress
- Anger
- Anxiety
- Bullying
- Depression
- Feelings of worthlessness
- Humiliation
- Low self-esteem
- Paranoia
- Post-Traumatic Stress Disorder (PTSD) from the release of the explicit photographs or images
- Withdraw from personal relationships with friends, family members, and significant others
In addition, revenge porn victims may suffer additional harm from cyber harassment, cyberbullying, and cyberstalking from persons who saw the explicit images on social media or websites (or by email, instant message, or text message).
Sometimes the symptoms are so severe that the revenge porn victim drops out of school or finds it impossible to work, in which case they may qualify for Social Security Disability benefits.
Have States Criminalized Revenge Porn?
Yes.
Forty-eight states (plus the District of Columbia (D.C.), Puerto Rico, and Guam) have laws against nonconsensual pornography.
These laws vary in scope, with differing elements, definitions of explicit images, penalties, protections based on the age of victims, and required mindset (negligence v. recklessness v. intent).
Is Revenge Porn a Crime in Virginia? Understanding the Commonwealth of Virginia’s Statutes
Yes.
Two statutes criminalize revenge porn in Virginia – Code Sections 18.2-386.1 and 18.2-386.2.
Code Section 18.2-386.1 – Unlawful Creation of Image of Another; Penalty
This statute makes it unlawful for a person to knowingly and intentionally video or photograph any nonconsenting person who is:
- Nude
- Wearing only underwear
- Undressing with their genitals, pubic area, buttocks, or female breasts exposed in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, or bedroom
In addition, this law makes it illegal to video or photograph beneath or between a person’s legs to capture that person’s intimate parts or underwear when that person has a reasonable expectation of privacy.
Code Section 18.2-386.2 – Unlawful Dissemination or Sale of Images of Another; Penalty.
This law makes it a misdemeanor to maliciously disseminate or sell any video or photograph depicting another person nude or in a state of undress, exposing the genitals, pubic area, buttocks, or female breast, when unauthorized and done with the intent to coerce, harass, or intimidate.
Prosecutors may file charges in any jurisdiction where the unlawful act occurs or any video or photograph violating the law is produced, reproduced, found, stored, received, or possessed.
Is Revenge Porn a Felony or Misdemeanor in Virginia?
Revenge porn is punishable as a Class 1 misdemeanor or a Class 6 felony, depending on the facts.
For example, a violation of Code Section 18.2-386.1 is a Class 1 misdemeanor unless the video or photograph involves a nonconsenting person under 18. In that case, the crime is punishable as a Class 6 felony.
In addition, a person is guilty of a Class 6 felony for violating this statute (18.2-386.1) if the person:
- Has been found guilty of two or more similar offenses in the ten years before the most recent offense charged;
- The past offenses occurred on a different date and were not a part of a common act, transaction, or scheme as the most recent offense; and,
- The criminal has been free (not in jail) in between convictions.
Further, violating Code Section 18.2-386.2 is punishable as a Class 1 misdemeanor.
Can I Sue for Revenge Porn? Private Rights of Action for Nonconsensual Sharing of Intimate Photographs and Videos
Yes.
Tort law offers private rights of action and legal remedies to victims of revenge porn.
Let’s examine potential federal and state causes of action for victims of revenge porn in Virginia.
Federal Civil Action for Disclosing Intimate Images
Later this year (October 1, 2022), a federal law creating a new private cause of action against perpetrators of nonconsensual pornography and revenge porn takes effect.
This federal statute, Section 1309 of the Violence Against Women Act Reauthorization Act of 2022, is titled Civil Action Relating to Disclosure of Intimate Images.
Given the nature of the Internet and its role in interstate commerce, bringing a federal lawsuit will be an option for most (if not all) victims of revenge porn.
Federal Definitions Related to Revenge Pornography
It defines several terms, such as:
- Consent: The term “consent” means an affirmative, conscious, and voluntary authorization made by the person free from force, fraud, misrepresentation, or coercion.
- Depicted Individual: The term “depicted individual” means a person whose body appears in whole or in part in an intimate visual depiction and is identifiable by their face, likeness, or other distinguishing characteristics, such as a unique birthmark or tattoo.
- Disclose: “Disclose” means to transfer, distribute, publish, or otherwise make accessible.
- Intimate Visual Depiction: An “intimate visual depiction” is material that depicts: (i) the uncovered genitals, pubic area, anus, or post-pubescent female nipple of an identifiable person; (ii) the display or transfer of bodily sexual fluids on to any part of an identifiable person’s body, from the body of an identifiable individual, or during sexually explicit conduct.
When Do I Have a Federal Right of Action for Revenge Pornography?
Suppose a person discloses an intimate visual depiction of you when knowing or recklessly disregarding that you did not consent to the publication of the material. In that case, you may bring a civil action against that person in an appropriate United States district court.
The fact that you consented to create the visual depiction does not establish that you consented to its distribution.
Nor does the fact that you sent the intimate image to someone else establish that you consented to the other person further disclosing the image.
The law, however, creates exceptions where relief is not available.
What Relief is Available Under the Federal Civil Law for Nonconsensual Distribution of Intimate Images or Videos?
If your federal lawsuit is successful, you may recover:
- Actual damages or liquidated damages of $150,000
- The cost of bringing the civil action, including reasonable attorney’s fees and other litigation costs reasonably incurred.
- Other relief available at law, such as a temporary restraining order, a preliminary injunction, or a permanent injunction ordering the defendant to stop displaying or disclosing the visual depiction
In addition, you may remain anonymous during the litigation. The court will allow you to use a pseudonym and maintain confidentially.
Civil Action for Revenge Porn in Virginia
Virginia Code Section 8.01-40.4 gives revenge porn victims a cause of action for the unlawful creation of images or the unlawful dissemination or sale of pictures or videos that violate Code Sections 18.2-386.1 or 18.2-386.2.
This section states:
A. Any person injured by an individual who engaged in conduct that is prohibited under Code Section 18.2-386.1 or 18.2-386.2, whether or not the individual has been charged with or convicted of the alleged violation, may sue for and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
B. No action shall be commenced under this section more than two years after the later of (i) the date of the last act in violation of Section 18.2-386.1 or 18.2-386.2, (ii) the date on which such person attained 18 years of age, or (iii) the date on which such person discovered or reasonably should have discovered the prohibited conduct.
C. Nothing in this section shall be construed to impose liability on an interactive computer service, as defined in 47 U.S.C. Section 230(f), for content provided by another person.
Let’s analyze this law.
First, a revenge porn lawsuit allows you to seek the same personal injury damages you can recover in a motor vehicle crash or product liability (defective product) claim.
Second, your harasser (the person who unlawfully video recorded or photographed you) may have to pay reasonable attorney fees and costs, even if you hired an attorney on a contingency fee basis. This attorney-fee shifting provision provides leverage in settlement negotiations.
Third, the standard statute of limitations for personal injury cases of two years applies to revenge porn lawsuits. However, the period to file a lawsuit might not start on the date of the unlawful act. Instead, you may have two years from when you turn 18 or discover the prohibited act. Therefore, you should explore your legal options even if you do not find out about the nonconsensual photo or video until years later.
Fourth, you will likely be limited to suing the person or persons who took or published the image or video. The owners of the websites hosting the nonconsensual photographs or videos will probably have immunity from civil actions under federal law.
Civil Action for Injury Resulting from Intentional Infliction of Emotional Distress (IIED)
In addition to seeking damages under private rights of action specific to revenge porn, you may also seek damages under the tort of intentional infliction of emotional distress.
A person is liable for damages under this tort if they intentionally or recklessly caused another person severe emotional distress by acting outrageously.
Depending on the jurisdiction, you may need to show that the emotional distress resulted in physical symptoms.
Other Acts that Revenge Porn Victims Can Take to Protect Their Privacy
Filing a lawsuit is one of many things you can do if you are the victim of nonconsensual pornography.
Other options, which you can (and often should) do in conjunction with suing the perpetrator, include:
- Reporting the private photos or explicit material to the website hosting the item. Many social media websites prohibit the publishing of these types of images and will review them if reported. If the website determines the image violates its guidelines, it will remove it and try to stop its spread. Examples of sites that ban nonconsensual pornography include Facebook, Snapchat, Twitter, Yahoo, Instagram, and Reddit.
- Issue a DMCA Takedown Notice. If honored, the website receiving the notice will remove the offending content from its platform. For example, you can ask Google to remove content from its search results here.
- Contact organizations that support and provide resources to victims of sexual abuse and revenge porn.
- Take a screenshot of the offending material to use as evidence in your case.
Get Help from a Revenge Porn Lawyer
As the victim of revenge porn, you may feel isolated and alone.
But you are not. Legal assistance is available.
A skilled revenge porn attorney can help you recover damages for injuries resulting from another person disclosing private, intimate images.
Contact us today for a free consultation.
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