On Tuesday, the Senate Judiciary Committee will hear legislation (S0401) filed at the request of Attorney General Kilmartin that would criminalize revenge porn and sextortion. The Senate unanimously passed identical legislation last year. Companion legislation in the House (H5304) passed the House in a near unanimous vote on March 21, 2017.
Revenge porn is sexually explicit media that is publicly shared online without the consent of the pictured individual. Revenge porn is uploaded by former lovers or hackers for the purpose of humiliation, coercion, exploitation, and financial gain. The images or videos are often accompanied by personal information, including the pictured individual's full name and links to their social media profiles.
"Last year, the General Assembly rightfully passed this legislation to protect victims whose lives have been turned upside down by the vengeful act of a former lover, and to give police and prosecutors the tools to go after those who engage in this spiteful and depraved behavior," said Attorney General Kilmartin. "Unfortunately, relief for victims never came to fruition, as the Governor cowered to special interests and vetoed the legislation. Rhode Island continues to be an outlier in failing to have a strong revenge porn law on our books and women continue to be preyed upon by former intimate partners."
The Governor has filed a watered-down version of Kilmartin's legislation that would create gaping loopholes for defendants and make it nearly impossible to effectively prosecute. Under the legislation filed on behalf of the Governor (S0765), a defendant who posted nude images of an ex-lover could merely use the defense, "I did it because I think she is beautiful, not because I wanted to harass her," effectively revictimizing the victim.
Commenting on the weak legislation, Attorney General Kilmartin said, "The Governor continues to demand that specific intent language be included in revenge porn legislation. Specifically, the Governor suggests the addition of 'intent to harass, intimidate, threaten, or coerce' the victim is necessary and will cure any First Amendment concerns. Not only is the Governor's reasoning legally flawed, it is a disgrace that the Governor would put the interests of Hollywood elites before that of Rhode Island victims of this horrendous crime that has lifelong impact."
Revenge porn is not only used to harass victims, it has also been used for blackmail, extortion, and identity theft. Yet, under the Governor's proposal, any individual who participates in this despicable behavior would have a defense to these horrible acts, because their intent was not to 'harass, intimidate, threaten, or coerce.' A bad actor in this scenario could literally have, and testify to, dozens of reasons of why they perpetrated this terrible act, but if their reason is not one of the four reasons that the Governor suggests, it is likely that they would not be held criminally liable. Her version of this legislation would create a realistically unenforceable statute. In other words, the Governor's legislation would be a defense attorney's dream.
Under the Governor's version of the legislation, the Attorney General's Office could not prosecute the estranged husband of a young woman for posting intimate photos of her on various social media sites while the couple was going through a contentious divorce.
"My office has conducted legal research, amended and vetted the version of the legislation filed at my request for over six years and analyzed similar legislation that has been enacted in 34 other states. I am confident that after review by our criminal, civil, and appellate units that, if challenged, the legislation filed by my office will easily sustain any constitutional challenge," added Kilmartin. "I trust the members of the Senate will see through this red herring and move forward to pass the bill with the same language as last year."
Passage of the bill filed by Kilmartin would make Rhode Island the 37th state to have laws addressing the issue, and is supported by the Cyber Civil Rights Initiative, a nonprofit organization dedicated to protecting civil liberties online. Other states have enacted laws that have the same or similar language as bill filed by Attorney General Kilmartin, including California, Connecticut, Illinois, Minnesota, and New Jersey. Further, the Office is not aware of any state that have passed the legislation in which the law was struck down as unconstitutional.
Kilmartin noted that his legislation – as written - does not in any way infringe upon free speech or the First Amendment. The law would only apply to those who knew that the image was created under circumstances where a reasonable person would know or understand that the image is to remain private and explicitly exempts material that "relates to a matter of public concern and dissemination serves a lawful purpose."
Kilmartin's legislation also explicitly exempts when dissemination of such serves a lawful purposes; when the dissemination is made in the course of a lawful public proceeding; when the dissemination involves voluntary nudity or sexual conduct in public or commercial settings or in a place where a person does not have a reasonable expectation of privacy; and when the dissemination is made in the public interest, including the reporting of unlawful conduct, or lawful and common practice of law enforcement, criminal reporting, corrections, legal proceedings, medical activities, scientific activities, or educational activities.
"As Attorney General, my obligation is to seek justice for victims. I also have a duty to advocate for laws that are both meaningful and constitutional. My legislation achieves all these goals," added Kilmartin.
Kilmartin's legislation also creates criminal penalties for those who engage in "sextortion," a relatively new and very disturbing cybercrime that occurs when offenders use personal images – often stolen or obtained by hacking – to force victims to engage in sending more sexually explicit photos or videos under threat the images will be made public. In addition, victims are often extorted into paying money or providing personal identifying information for the images not to be posted or revealed to others.
According to a study by the Brookings Institute, 71 percent of sextortion cases involve victims under the age of 18, and that while nearly all adult victims are female, both minor girls and boys are targeted.