Assemblyman Edward C. Braunstein (D-Bayside) and Senator Joseph A. Griffo (R-C-IP, Rome) announced the introduction of new legislation criminalizing the non-consensual disclosure of sexually explicit photographs, also known as “revenge porn.”

In an era of text messaging, social networking, and emailing, it is becoming increasingly more common for people in intimate relationships to share pictures with each other, some of which may be sexually explicit in nature. Unfortunately, recipients of these images do not always keep the images within the confines of their intimate relationship, and have the ability to widely disseminate the photos on the Internet. The non-consensual disclosure of such sexually explicit images, also known as “revenge porn” is often provided to Internet websites, and features photos sometimes accompanied by disparaging descriptions and identifying details, such as where the victims live and work, as well as links to their social network pages. These photographs have extensive negative effects, including damaging future intimate relationships and hindering educational and employment opportunities. Also, there have been instances where victims were routinely threatened with sexual assault, stalked, harassed, or fired from jobs.

“Disseminating sexually explicit images that were shared with an expectation of privacy can cause lasting damage to victims and should be a crime,” said Assemblyman Braunstein. “Passage of this legislation would make it clear that New Yorkers will not allow this type of harassment to continue. With the proliferation of cell phones and social networking, this problem will only get worse if we do not take immediate action."

Senator Griffo said, “This so-called phenomena of ‘cyber-revenge,’ is a tawdry form of exploitation. From what we know, the majority of its victims are women who don’t know that their images and likenesses has been bartered and sold over the internet. Currently, these victims have limited options when their pictures taken with their consent, were posted online. They would have to enlist a lawyer and threaten to sue the person responsible for sharing the photo or the website hosting them, for invasion of privacy. New Jersey and California have laws addressing this problem, we’re advocating that New York should be the third.”

Mary Anne Franks, Associate Professor of Law at the University of Miami School of Law, who helped draft this legislation, stated, "This bill sends the strong message that New York will not tolerate this devastating form of virtual sexual assault. Additionally, this bill demonstrates that it is possible to clearly prohibit a narrow category of malicious conduct while respecting legitimate First Amendment concerns."

New York’s current distribution of unlawful surveillance law only governs photographs taken without the subject’s consent. This bill would govern photographs that are captured consensually, as part of an intimate relationship, with the expectation of privacy, and are later disclosed by an individual to the public without the consent of the individual photographed. Criminalization is preferable to civil suits by victims because civil suits do not deter those who upload or disclose new images after a civil suit has ended. Furthermore, a lengthy trial is emotionally exhausting and prohibitively expensive. Moreover, the websites that distribute non-consensual pornography are given broad immunity for civil liability under federal law through the Communications Decency Act. Therefore, criminalizing disclosure of these photos may prevent websites from benefiting from the harmful images.

This legislation makes the non-consensual disclosure of sexually explicit images a class A misdemeanor and the person who discloses the photograph is also subject to a maximum fine of $30,000. This bill is narrowly drawn so as not to infringe on First Amendment rights, as there is no constitutional protection afforded to individuals who consume or distribute sexually explicit images of individuals without their consent. The bill also provides exceptions for lawful and common practices of law enforcement, and situations involving voluntary exposure in public or commercial settings.