Revenge Porn in New York: Aggravated Harassment, Dissemination of an Unlawful Surveillance Image or any other Crime?

“Revenge Porn” has entered the vernacular of every day New Yorkers and it appears as if it is here to stay. With the proliferation of social media, Revenge Porn, and the pictures or videos that it consists of, reeks havoc on the people who are reflected or portrayed in the online imagery. While there very well may be civil avenues to hold perpetrators of Revenge Porn accountable for their postings and sharing, what, if any, criminal remedies exists? Is there a Revenge Porn statute or crime in the New York Penal Law? For better or worse, the answer is no, but does that mean those who post Revenge Porn are free from arrest or prosecution in New York City or New York State?

In People v. Barber, 2013NY059761, NYLJ 1202644738008, at *1 (Crim., NY, Decided February 18, 2014), the defendant allegedly posted nude photographs of the complainant, his former girlfriend, to his own Twitter account and shared the same with his ex-girlfriend’s employer and sister. This was done without the complainant’s consent. As a result of this conduct, the New York County (Manhattan) District Attorney’s Office charged the defendant with Aggravated Harassment in the Second Degree, New York Penal Law 240.30(1)(a), Dissemination of an Unlawful Surveillance Image in the Second Degree, New York Penal Law 250.55 and Public Display of Offensive Sexual Material, New York Penal Law 245.11(a). The defendant brought a motion to dismiss all charges. Although the Court found that defendant’s conduct was despicable, it nevertheless determined that the defendant did not violate any criminal statute for which he was charged.

In addressing the Dissemination charge, the Court laid out three elements that must be satisfied: 1) intentional dissemination of an image of another person’s sexual parts; 2) unlawful conduct in obtaining said images; and 3) defendant knew of the unlawful conduct by which he obtained the images. The facts pleaded in the accusatory instrument only support the first element. The facts do not refer to how defendant obtained the pictures (were they obtained with consent when they were initial photographed?), let alone any unlawful behavior by the defendant in obtaining the images, nor are there any facts showing defendant’s knowledge of any unlawful conduct. Because the People could not establish this unlawful obtaining, Dissemination of an Unlawful Surveillance Image in the Second Degree could not stand.

The Court, directing its attention to the 2nd Degree Aggravated Harassment charge, also found that the defendant did not harass, or cause any harassment, to the complainant. New York Penal Law §240.30(1)(a) states that a defendant is guilty of violating this statute when he, “with intent to harass, annoy, threaten or alarm another person…communicates with a person, anonymously or otherwise.” Although the word “communicates” is interpreted very broadly, there are no facts in this case that defendant had any direct or indirect communication whatsoever with complainant. See, People v. Smith, 89 Misc.2d 789 (App. Term, 2nd Dep’t, 1977). The accusatory instrument only stated that complainant saw the pictures – but did not state whether defendant sent the images directly to her. Relevant to this offense, the Court seemed to distinguish a general posting as opposed to a posting direct at or to the intended target.

Finally, the Court found no merit in the Public Display of Offensive Sexual Material charge. In coming to this conclusion, the Court emphasized that the purpose of this statute is aimed at protecting the public. With that being said, this charge, in the instant case, fails for two reasons. First, the pleaded facts fail to sufficiently support a conclusion that there was a “public display” of the images. Defendant’s actions of posting the images to his Twitter account and sending the images to complainant’s sister and employer are private acts that do not constitute an “indiscriminate thrust upon unwilling audiences [i.e. the unsuspecting public],” People v. Isaac, 69 Misc.2d 758, 760-61 (Crim. Ct., Bronx County, 1972). Second, the statute requires the images must “depict nudity” and that the image “predominantly appeal to the prurient interest in sex.” Penal Law §245.11(a). Therefore, it is not enough to plead that the images were of a naked person – as is the case here – without any factual support showing the images appealed to the “prurient interest in sex.”

In sum, though the Court wrote on numerous occasions that the acts of the defendant were morally reprehensible and offensive, it ultimately held that as charged, the claims against the defendant were not sufficient. Keep in mind, however, although the complaint here did not support a criminal act, depending the circumstances and evidence, “Revenge Porn” could still involve a criminal act.

To learn about the crimes listed above and those that might constitute “Revenge Porn,” review this blog and the Crotty Saland PC website through the links above and below.

The New York criminal defense attorneys and former Manhattan prosecutors represent clients who are accused and victims of “Revenge Porn” and other online harassment cases throughout the New York City area.

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