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Revenge porn laws may be unfamiliar legal territory

Cyberbullying has become rampant with the advent of new technologies and ubiquitous online social media outlets. But over the last few years, internet bullying has taken a particularly ugly turn. When harassment includes the publication or distribution of sexually explicit images without the subject's consent it is considered a crime of nonconsensual pornography, commonly referred to as "revenge porn."

In early 2015, a Milwaukee man was charged under Wisconsin's revenge porn law, which had been enacted just 12 days earlier. He allegedly posted nude and semi-nude pictures of his ex-girlfriend after a contentious breakup.  Later in 2015, a scorned wife from Menomonie posted nude photos of her husband's mistress along with nasty comments and the woman's contact information. She had obtained the photos from the woman's ex-boyfriend. Both the wife and the ex-boyfriend were charged.

Charges associated with cyberbullying may include stalking, criminal harassment, identity theft, and unlawful use of the internet. In Wisconsin, the punishment for being found guilty of publishing/posting a sexually graphic image without permission is a maximum fine of $10,000 and/or jail time.

Most people would agree that posting revenge porn is morally reprehensible. But provisions in Wisconsin's law are troubling because they could lead to some questionable prosecutions. Under the law, a person can be prosecuted if they post nude or semi-nude images of someone else without the subject's consent if those images were intended to be shared with a very limited audience (usually a romantic partner).

There are two potential problems. First, it is not always clear when images are shared that the subject wants the images to be kept in strict confidence. Second, the law does not require that the images were published with the intent to humiliate or embarrass the subject (in order for the publisher to be prosecuted). As we have written in the past, many criminal justice scholars believe that convictions need to be based on a standard of proving "mens rea," or criminal intent.

Although many states have banned revenge porn, the laws are relatively new. In coming years, there may be many cases that challenge how these individual laws should be written and interpreted.

 

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