As of this week, the UK can now prosecute perpetrators of “revenge porn” with up to a two-year prison sentence. Revenge porn is the act of posting videos or photographs after a breakup that were taken consensually during the relationship. To be revenge porn, the new UK law requires that the distribution of videos and photos of a sexual nature must be done without the consent of the person in them and must have the intention of causing distress to the person featured. Prior to this, although there were over a hundred cases of complaints reported in England and Wales, in the 2 1/2 years leading up to September 2014, only six of those incidents resulted in any kind of police action. There are websites devoted to this and earlier this year an American, 2004 Moline High School graduate Kevin Bollaert, (qconline)was sentenced for his part in a revenge porn site that posted these videos and then charged women to remove their images from the web.
Women are typically the victims in these situation, with their images posted by former boyfriends or ex-husbands. But this is not exclusively the domain of men. In October 2014, a Virginia woman was charged for posting the nude photo of her ex-boyfriend’s current girlfriend to Facebook. This followed a similar but inverted case two months prior, also in Virginia, where a woman posted her current boyfriend’s ex-girlfriend on Twitter and Instagram. These women were both charged under a new law that had been put in place in July of 2014 and represents the kind of legislation active in a handful of states – about 12 – that have any kinds of laws regarding posting on such sites. In most US states, federal law absolves websites of responsibility for material posted by third parties. Even in the states that do have legislation, pinpointing who the poster is can still be an obstacle to prosecution. Furthermore, the origin of the photo may make a difference – some states won’t protect content that was shot by the victim.
Some victim advocates, including Dr. Fiona Vera-Gray of the End Violence Against Women coalition, have said that changing legislation has the effect of turning the tide away from blaming the victim and instead focusing on how the intent of the poster is really what makes this situation problematic and wrong. (The Independent) Others, such as Dr. Peggy Drexler, have noted that because the laws are unclear and largely ineffectual, they return the focus to victim blaming because the only way to be sure your private photos remain private is not to take them in the first place. She writes: “This is the philosophy behind most common advice given to teens, among whom the rates of “sexting” continue to rise. Trust no one. Share nothing. Even better: Take nothing. While we’re at it: Don’t leave the house. After all, you could get mugged, or raped. You’d better not fly on a jet, either…swim in the ocean? No way: sharks! It’s ridiculous logic.” Drexler 2014
Drexler goes onto say that the “blame for a crime lies not with the victim but with the criminal.” I think this is true for two reasons. First, the perpetrators of revenge porn, both those who are posting it and those who are encouraging its posting, are guilty of sexual exploitation in a way that is particularly egregious because the people are being victimized without even knowing it is happening. Someone’s image or private video could be accessed thousands of times online without the victim being aware that it was posted and the way that they are most likely to find out is via the source of the greatest humiliation: someone they know seeing it.
Second, the fact is that the video or image was created in a certain context for a certain purpose and revenge porn is knowingly and maliciously taking that visual data and applying it in another context. I would argue that this is as much a case of defamation or libel as was the Shirley Sherrod case where she alleged that Andrew Breitbart had posted highly edited video of her making racist justifications for her work decisions at the USDA.
In the case of revenge porn, whether the creator of the image was the poster, the victim, or some third party, those in the video were consenting (and I am limiting my remarks here to images that were taken consensually) to the recording of their image with one intent in the context of a relationship of some sort. Whether the poster participated in the video/photograph is irrelevant to whether they are able to provide full informed consent to the posting. Unless all parties portrayed agree to consent to this change of content/intent then the image should not be able to be posted. (This could potentially raise some questions about the content that is posted on Facebook or Tumblr but I’m not sure that isn’t a conversation worth having.) In any case because of the private nature of the images in question I think the demand of informed consent becomes more salient. In the case of revenge porn, while the images were recorded with consent, either explicit or implicit through their voluntary participation, that consent was for the purpose of private use. They cannot possibly have given legitimate informed consent to the posting of those images on publicly accessible websites if they were not informed at the time of consenting that this was the intended purpose.
I think this is particularly relevant to the issue of victim blaming. While the victim did consent to having their image recorded, that consent was given in a certain context – with certain intent. As Illinois State Representative Scott Drury (D-Highwood) told the Huffington Post “They’re not taking that consent back – they never gave it to begin with.” (Huffington Post) Because the poster has altered the conditions that the images are being used for, the victim’s consent no longer applies to these cases and as such, the victim bares no moral or legal responsibility for the posting and their subsequent humiliation.
However, I disagree with Drexler insofar as I don’t think it is out of line for someone to caution people against taking images that they don’t want distributed. I don’t think this is victim blaming because I think the notion of blame implies moral or legal obligation and I don’t consider this caution to be expressing a moral or legal obligation but rather a prudential consideration. I wouldn’t write down my credit card information and hand it to a friend to use. This is because while I may trust my friend, she doesn’t have the same incentive to protect that information as I do. If I were to write down the information and she were to lose it, this is her moral responsibility, but it was certainly an unwise thing for me to do. My choice to share sensitive information with another person demonstrates risk-taking and personal judgment. In this case, I judged my friend to be trustworthy and I was mistaken. We can be mistaken about judging romantic partners and anytime there is the potential to be mistaken about something it is reasonable to be cautious to the extent that our mistakes could have bad consequences – the greater the consequences the greater our incentive to be cautious (and that isn’t even factoring in the possibility of cloud hacking.) If someone is going to be mortified by the distribution of private photographs or videos, it makes sense for them to avoid taking them. That is not the same as saying they are morally or legally to blame for their distribution. However, that may be cold comfort to someone who has been the victim of revenge porn.
--Jessica Gosnell
