Bills targeting revenge porn advancing in Statehouse

In the past year, Alex Beeman has received some 36 calls from individuals impacted by revenge porn. That adds up to at least three requests per month asking how they can navigate a potentially life-altering situation.

“They’ll ask, ‘Hey, my ex-boyfriend or husband are trying to expose me,’ or ‘I found my naughty images on a porn website, what do I do?’” Beeman said. The Reminger LPA attorney volunteers as a panelist for the Cyber Civil Rights Initiative, providing victims of nonconsensual pornography, commonly referred to as revenge porn, with pro bono legal assistance.

Nonconsensual pornography is exactly what it sounds like — the unconsented distribution of an individual’s sexually graphic images. Nearly one in 25 Americans have either had sensitive images posted without their permission or were threatened to have such photos posted of them, according to a 2016 Data and Society study.

Although he primarily receives calls from women regarding revenge porn, Beeman said he also hears from men in the same boat.

“The fact that it’ll be there forever is the sad reality,” he said. But such cases aren’t often litigated in Indiana, Beeman said, as no laws are currently in the books to specifically address revenge porn.

But legislation gaining traction in the Indiana Statehouse could potentially criminalize the posting and sharing of such images. Senate Bill 243 and House Bill 1333 provide that a person who knows an individual in an intimate photo does not consent to the posting of that image, but proceeds to do so anyway, could be charged with a Class A misdemeanor. The penalty would increase to a Level 6 felony for a second or subsequent offense.

Another revenge porn bill, Senate Bill 192, would create a civil cause of action against a person who discloses an intimate image without the consent of the individual depicted in that image, with damages recovered not exceeding $10,000.

All three measures easily passed their houses of origin, but none have yet been scheduled for further committee hearings.

As the bills advanced, however, wariness of revenge porn laws lead some to concerns of whether free speech could be chilled under the First Amendment. More specifically, whether the government can restrict content-based images from being publicly shared.

“Anytime the Legislature or government wants to regulate free speech, it has to meet constitutional muster under the First Amendment,” Beeman said. “Photos are a type of speech, so the question is whether this is an exception or not, and if you get into regulating speech, it can get kind of complicated.”

A Texas appellate court struck down a revenge porn law in 2015 for just that reason, finding the law to be unconstitutional due to its content-based restrictions. Beeman noted that “obscene” speech is not protected under the First Amendment. Proving obscenity in court, however, is a high bar.

“So where does this fall within that framework is kind of where the question is still not settled in Indiana,” Beeman asked. “Is it obscene to transmit a picture of your ex-wife in a revealing bra? That’s a tough argument I think, because it doesn’t fit within the normal groundwork of obscene under the constitutional framework. That’s something that states are determining on a state-by-state basis.”

As of 2019, the Cyber Civil Rights Initiative recorded 43 states currently have revenge porn laws in place. Indiana could be next with its proposed legislation, but sexual harm and trauma advocate Sarah Hurley said she’s unsure if Hoosier revenge porn victims would receive the justice they deserve even if the bills become law.

“I think in theory it makes perfect sense,” Hurley said. “Practically speaking, I think there could be a lot of implications, and there is just a lot of complexity that I think could become very confusing and cumbersome.”

Hurley, founder of the White Stone Project, coaches and trains those who work with sexual harm survivors to better understand and avoid revictimization. She said she supports the progression of the bills and likes that the language specifically defines what constitutes an intimate image, but she’s unsure how many cases would actually be prosecuted. 

“It’s a fine line and a delicate balance trying to both protect people’s rights and try to keep up in a world where technology changes so rapidly, to try and wrap our arms around that and put protections in place,” Hurley said. “I just think that it will be a challenge to legislate it and then adjudicate it well.”

Regardless, Hurley said she considers revenge porn as a repeated violation of an individual’s privacy, and an extension of sexual abuse or assault. Indiana University Robert H. McKinney School of Law professor Jennifer Drobac agreed, noting that because men are typically accused of posting sensitive material, they will use the First Amendment argument as a vehicle to defend themselves. 

“It’s laughable that men can argue they have a First Amendment right to post porn, when what they’re doing is playing to assert, dominate, control and punish women that they’re mad at,” Drobac said.

She said if Indiana’s revenge porn legislation becomes law, impacted individuals could benefit in seeking some justice. But Drobac noted that Indiana must have a larger conversation about recognizing sexual harassment.

“It’s wonderful to have laws, but if they’re not enforced then nothing will change,” she said. “This is a good start, and we’ll see what happens.”