N.Y.C. Admin. Code §10-180(b)(1): “Covered Recipients” and the Secondary Forwarding of Viral Revenge Porn

Similar to Penal Law 245.15,  NYC Administrative Code 10-180(b)(1) is the crime of Revenge Porn within the confines of Manhattan, Brooklyn, Queens, Bronx and Staten Island. Both of these offenses, Unlawful Dissemination or Publication of an Intimate Image and Unlawful Disclosure of and Intimate Image, are misdemeanor statutes and provide for civil prosecutions and law suits as well. Irrespective of which charge is pursued, the law mandates prosecutors to plead certain elements. Specifically, AC 10-180, formerly AC 10-177*3, requires that a “covered recipient” discloses an “intimate image” without the consent of the “depicted individual.” Further, the wrongful sharer or poster must have an objective to cause economic, physical or substantial emotional harm to the depicted person and that individual must be identifiable either because it is clear in the image or from the circumstances the same was disclosed. Without parsing out all of the definitions and legally defined terms, People v. Ahmed, 2018BX038930, demonstrates the legal minimum standard the District Attorney must set forth in a complaint to survive a defense lawyer’s motion to dismiss and the necessity that a “covered recipient” is established within the four corners of the accusatory instrument.

For the purposes of this dismissal, but relevant to any case, the Bronx Criminal Court examined what makes a person a “covered recipient.” AC 10-180(a) defines such a person as “an individual who gains possession of, or access to, an intimate image from a depicted individual, including through the recording of the intimate image.” As such, the law limits who is covered. In general terms, the person reflected in the picture or video must give or share the recording in question with the alleged abuser as opposed to anyone who ultimately passes along the same after it has gone from phone to phone or viral. If prosecutors fail to allege this element – that the person posting or forwarding is not just anyone but a “covered recipient” – then the charges must also be dismissed.

In People v. Ahmed, the Court articulated this point as follows:

“Clearly, the element would be satisfied by an allegation in the complaint that the defendant received the video directly from the complainant or that he recorded it himself. The element may also be shown circumstantially in a complaint containing sufficient facts from which the court can infer the conditions of the video’s creation and possession. However, simply alleging that the defendant was a participant in the act portrayed in the video is not enough to establish that the defendant is a “covered recipient” under the statute (emphasis added). There are no allegations about the circumstances of the recording or even that there were no other people involved in the act or in the recording.2 The court then must rely on certain unsupported assumptions both as to how the video came into being and how the defendant came to possess it.

There is no doubt that the above ruling was a victory for the defendant even if short term. The law allows, as long as compliant with certain rules of Criminal Procedure, for law enforcement to supersede the accusatory instrument with the corrected language. Having said that, the bigger point is as follows. No matter the accusation and arrest, the burden rests with the prosecution to establish every element of a particular crime. While allegations of Revenge Porn are beyond disturbing and, if true, morally wrong, both complainants and defendants must do their respective due diligence to best ensure the legal pleadings are accurate and proper.

Whether a victim of Revenge Porn or accused of either Penal Law 245.15 or AC 10-180, the criminal lawyers and former Manhattan prosecutors at Crotty Saland PC represent clients in all proceedings – Criminal Court, Family Court, and Civil Court – related to these offenses.

To learn more about these crimes and related offenses, please review the links provided throughout this blog entry.