Revenge Pornography

Abstract

Revenge pornography involves a person posting online photos or videos of a sexually explicit nature, without the subject's consent, in order to inflict suffering. To qualify as revenge porn, the person posting the material must have previously been in an intimate relationship with the subject of the material. There are other forms of malicious posting of intimate photos and videos—for blackmail, or harassment, for example—but these are not motivated by a desire for revenge because they are not in response to a perceived slight against the perpetrator. Some research has termed this type of material as nonconsensual pornography.

Overview

For many years there have been communities within the pornography market devoted to the distribution of images and video without the consent or knowledge of those depicted. In the distant past, this happened through print magazines to which readers would submit photos for publication. In some cases such material was published along with the subject's personal information, which led to the victims suing the magazine publishers to end the practice. With the advent of the Internet, this type of behavior migrated into the online environment, as users began to share unauthorized content in many different online platforms. Some of these were official to the extent that they were owned by or associated with publications that had real-world analogs, while others were simply forum sections of websites (Larkin, 2014).

The material that revenge-seekers post online can come from a variety of sources. The most common scenario is that two people become romantically involved with one another, and during the course of their relationship one or both of them takes explicit photos or videos of themselves, and sends these to the other. Alternatively, they may agree to take intimate pictures or record video of themselves when they are together. A less common situation, though by no means unheard of, involves one party surreptitiously taking pictures or video of the other (Osterday, 2016). The relationship ends in such a way that one of the parties feels aggrieved or mistreated. The angry party then uses the explicit material to attempt to inflict humiliation and pain on the other party.

To maximize the victim's suffering, the perpetrator may try to post the material in a way that makes it most likely to come to the attention of people whom the victim knows personally, such as family members, coworkers, or classmates. Prior to the existence of social networks, this could be challenging, as the perpetrator would not necessarily have a way of contacting these groups of people, or of transmitting the material to them even if their identity was known. With social media, this has drastically changed, and revenge pornography can be distributed to a person's entire list of contacts with the click of a mouse (Walker & Sleath, 2017).

The consequences of having revenge pornography posted can be damaging. If the material is sent to a person's professional network, for example, the victim may face harassment, lose status, or be terminated by an unsympathetic employer; further, the continued presence of the images on the Internet may make it difficult for the victim to find new employment, as hiring managers and human resource departments often check the Internet for background on applicants. When revenge pornography is sent to family and friends of the victim, the humiliation and harm to relationships can be lasting. It is not unusual for relationships between the victim and others to severely deteriorate or end, as the victim is overwhelmed with shame and recipients of the material find themselves uncomfortable in social encounters with the victim. In many cases, victims of revenge pornography eventually contemplate or even attempt suicide, seeing no other way to escape what they perceive as the judgments of others. Psychologists have noted that the mental health effects of being the victim of revenge pornography may be long lasting, and in many respects mirror the consequences of experiencing child sexual abuse: shame, guilt, humiliation, and a desire to isolate oneself from others.

Reactions among the general populace to incidents of revenge pornography tend to be somewhat mixed. While there is widespread sympathy for those who are victimized by persons with whom they have been intimate, this is often tinged with a shade of judgment against the victim for sharing something that was later used against him or her.

A number of pundits have suggested that this may be related to the fact that the vast majority of the victims of revenge pornography are women, and that society has a long tradition of blaming and punishing women for their sexuality (Kamal & Newman, 2016). Under this theory, the typical victim of revenge pornography, a woman, has incurred the wrath of society by making it possible for her sexuality and/or sexual activity to become a matter of public knowledge. In response to this treatment of crime victims, advocates for women's rights and gender equality have organized public information campaigns to change societal attitudes about revenge pornography. Part of this effort has involved placing revenge pornography in its proper context.

Rather than being evidence of moral failure or radical naivete, it is a particular form of cyberharassment, combined with elements of cyberstalking. Cyberharassment, or cyberbullying as it is sometimes known, is a systematic and personal attack by one person against another, motivated by the desire to inflict pain and suffering, using the Internet to accomplish this goal. Cyberstalking involves tracking the online activity of another person without their knowledge or permission. Cyberstalking is often used to acquire information that can be used to further a campaign of cyberharassment. The hope of advocates in contextualizing revenge pornography this way is to remind people that it is a crime and its victims deserve sympathy and assistance.

Further Insights

Revenge pornography can easily be confused with other types of pornography, making it a more complex issue to address. There are a number of situations in which a person may post sexually explicit material without the subject's consent, yet lack the motive of a soured romantic relationship that is a prerequisite for material to qualify as revenge pornography. Some people post such material, or threaten to, as part of an extortion scheme. They begin by gaining unauthorized access to the victim's computer or online accounts and thereby obtain compromising material. Next, they threaten the victim with revealing the material unless he or she complies with their demands. If the victim refuses the demands, the perpetrator then posts the material. Other distributors may not have extortion in mind, but simply distribute the material online for their own amusement or in the hope of increasing their status among peers or within online file sharing communities, where providing new content is viewed favorably (Franklin, 2014).

At the time that revenge pornography gained national attention in 2010 from media reports about the website IsAnyoneUp.com, one of the major challenges associated with revenge pornography was finding a way to address it through the legal system. One obstacle to confronting the issue is a common perception that if a victim did not want to risk being the victim of revenge pornography, then he or she should never have provided the material in the first place. Initial responses to victims' complaints that images and videos of them had been posted without their consent were not always taken seriously, and there was some confusion as to whether revenge pornography was something the law could address, since it often involves a person posting content that was originally obtained with the consent of the subject, but later used for a purpose the subject had not contemplated (Citron & Franks, 2014).

In an interesting twist, some victims were able to have their images taken offline by invoking copyright law. This is possible under U.S. copyright provisions so long as the photos or videos in question were taken by the subject/victim (a "selfie"), rather than by the perpetrator. Under U.S. copyright law, the creator of a work—in this case a photo or video—automatically owns the copyright of that work; the right "arises" as soon as the work comes into being. Copyright is retained even if a copy of the work is later conveyed to another party, that is, when the subject sends the photo to his or her partner. The unauthorized distribution of the photo or video by the perpetrator is therefore a violation of the subject's exclusive control of the work. When victims' pleas to website administrators failed to arouse their moral outrage, the threat of a lawsuit alleging copyright violation was often successful (Levendowski, 2014) in getting the material taken down.

As the problem became more widespread, however, victims' advocates and policy makers in many states created new laws that specifically addressed the issue of revenge pornography. While it was previously possible to pursue a civil suit against perpetrators in addition to actions based on violation of privacy or copyright, the passage of criminal statutes has provided yet another option. In addition to creating an avenue for the punishment of perpetrators of revenge pornography, new laws in this area have also made it easier for Internet service providers (ISPs) and website hosting companies to crack down on users who share this type of material using resources that these companies control.

Usually when a legal action is filed concerning revenge pornography, it targets not only the perpetrator but also the ISP and website host, on the theory that these telecommunications entities, unless they act against it, are effectively supporting the behavior of perpetrators. The threat of potentially expensive litigation has been enough to motivate most of these companies to modify their terms of service so that any type of behavior related to revenge pornography is a violation justifying termination of service (Koppelman, 2016).

Revenge pornography is in some ways an intellectual paradox. Its nature is to be public in the most extreme sense, as it captures the attention of anyone who knows the victim even in the most tenuous way. Because it is so shocking and so notorious, and appears to arise from anger and lust, people generally believe that they understand the crime and what underlies it. The reality, however, is that relatively little is known about revenge pornography and those who use it as a tool of persecution. The phenomenon is relatively new, having arisen in its current form only with the advent of social media, and the prurient aspects of its nature may be deter many academics from investigating it. Serious studies of revenge pornography are only now beginning to emerge, examining who the perpetrators of this crime are, what their motivations may be, and what factors may have the potential to predict such responses to failed romance.

One research goal is to determine what means may be used to discourage potential perpetrators from distributing revenge pornography. While it is unlikely that individuals with a predilection to commit such an offense will read the research and conform their behavior to its directives, it is hoped that research will be of use in persuading lawmakers to devise legal means to prevent revenge pornography from being posted. This strategy has worked in the past, and is often successful owing to the fact that when appeals to plain decency fail to inspire compliance, the threat of prison and financial consequences may succeed (Stroud, 2014).

Issues

Though critics are far from supporting revenge pornography, some who do object to the use of the legal system to punish and prevent revenge pornography. The primary objection concerns the first amendment and violations of the right to free expression. This argument has not proven to be popular and is usually advanced more as an academic exercise than as a serious proposal to do away with restrictions on revenge pornography. At the same time, these objections have raised the possibility that there may be some revenge pornography laws that are too broad or too vague in their explanations of what is or is not considered revenge pornography. Legal scholars note that this pattern is common when new areas of the law emerge. Initial attempts at regulation may miss the mark by either taking too lenient or too strict a stance, and only with the passage of time is a more reasoned approach developed (Humbach, 2014).

Revenge pornography takes on an even more unpleasant character in situations involving children. Romantic relationships between teenagers frequently have a physical component, and when this fact is combined with easy access to cell phone cameras, it is not surprising that the phenomenon of "sexting" (sending sexually explicit text and picture messages to one another) has emerged. Sexting can easily transition to an opportunity for distributing revenge pornography once a relationship comes to an end. Maturity levels vary among adolescents, but it is not uncommon for breakups to provoke strong emotional reactions accompanied by disproportionately vengeful attempts to "get back" at an ex.

When the victim is a minor, the perpetrator is usually a minor as well. Compounding the difficulty of charging a child who is guilty of violating revenge pornography laws is the possibility that the perpetrator may also have violated much harsher laws pertaining to the creation and dissemination of child pornography. It is difficult to overstate the severity of a conviction on child pornography charges, as in many states it will require the perpetrator to register as a sex offender for the rest of his or her life.

Terms & Concepts

Cyberharassment: Online abuse of a victim by a person intent on inspiring fear and suffering.

Cyberstalking: Using computers and the Internet to surreptitiously collect information about a person.

Image Based Sexual Abuse: A phrase that has been proposed as an alternative for describing revenge pornography.

Nonconsensual Pornography: A term sometimes used in conjunction with discussions of revenge pornography, but broader in its inclusion of pornography not intended as revenge.

Selfie: A photograph one takes of oneself in order to post it online. Some revenge pornography consists of images that were originally selfies.

Sexting: The transmission of sexually explicit images or videos between romantic partners. This material may sometimes be saved and later used as revenge pornography.

Bibliography

Citron, D. K., & Franks, M. A. (2014). Criminalizing revenge porn. Wake Forest Law Review, 49(2), 345–391.

Franklin, Z. (2014). Justice for revenge porn victims: Legal theories to overcome claims of civil immunity by operators of revenge porn websites. California Law Review, 102(5), 1303–1335.

Humbach, J. A. (2014). The Constitution and Revenge Porn. Pace Law Review, 35(1), 215-260.

Kamal, M., & Newman, W. J. (2016). Revenge pornography: Mental health implications and related legislation. Journal of the American Academy of Psychiatry and the Law, 44(3), 359–367.

Koppelman, A. (2016). Revenge pornography and first amendment exceptions. Emory Law Journal, 65(3), 661–693.

Larkin, J. J. (2014). Revenge porn, state law, and free speech. Loyola of Los Angeles Law Review, 48(1), 57–118.

Levendowski, A. (2014). Using copyright to combat revenge porn. Journal of Intellectual Property & Entertainment Law, 34(2), 422–446.

Osterday, M. (2016). Protecting minors from themselves: Expanding revenge porn laws to protect the most vulnerable. Indiana Law Review, 49(2), 555–577.

Stroud, S. R. (2014). The Dark Side of the Online Self: A Pragmatist Critique of the Growing Plague of Revenge Porn. Journal of Mass Media Ethics, 29(3), 168–183.

Walker, K., & Sleath, E. (2017). A systematic review of the current knowledge regarding revenge pornography and non-consensual sharing of sexually explicit media. Aggression & Violent Behavior, 36, 9–24. Retrieved January 1, 2018 from EBSCO Online Database Sociology Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=sxi&AN=125856554&site=ehost-live

Suggested Reading

Bates, S. (2017). Revenge porn and mental health: A qualitative analysis of the mental health effects of revenge porn on female survivors. Feminist Criminology, 12(1), 22–42. Retrieved January 1, 2018 from EBSCO Online Database Sociology Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=sxi&AN=119580600&site=ehost-live

Beyens, J., & Lievens, E. (2016). A legal perspective on the non-consensual dissemination of sexual images: Identifying strengths and weaknesses of legislation in the US, UK and Belgium. International Journal Of Law, Crime & Justice, 4731–4743. http://search.ebscohost.com/login.aspx?direct=true&db=sxi&AN=120981289&site=ehost-live

Pitcher, J. (2016). The state of the states: The continuing struggle to criminalize revenge porn. Brigham Young University Law Review, 2015(5), 1435–1466.

Sebastian, M. (2017). Privacy and consent: The trouble with the label of "revenge porn." Feminist Media Studies, 17(6), 1107–1111.

Souza, E. (2016). "For his eyes only": Why federal legislation is needed to combat revenge porn. UCLA Women's Law Journal, 23(2), 101-129.

Vora, A. (2017). Into the shadows: Examining judicial language in revenge porn cases. Georgetown Journal of Gender & The Law, 18(1), 229–249. Retrieved January 1, 2018 from EBSCO Online Database Sociology Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=sxi&AN=123506506&site=ehost-live