“Revenge porn,” otherwise known as the dissemination of nonconsensual pornography, is the sharing of images or videos that portray a person engaged in an intimate or sexually explicit act without that person’s consent. Although the term “revenge porn” would seem to only entail sexually explicit content distributed with reprisal, its scope encompasses a variety of personal content obtained with or without consent, such as intimate images or videos privately shared with another in the context of a relationship or unshared content obtained by hackers.
Unlike other sex or privacy crimes, “revenge porn perpetuates the violation by allowing the public to witness the crime, memorializing a traumatic experience in the victim’s life.” It is an act that rips away one’s agency. With the rise of internet technology and the use of social media, revenge porn is an ever-present threat to individuals that take record of their bodies. “One in [ten] former partners threaten to post sexually explicit images of their exes online, and an estimated [sixty] percent follow through,” and more than eighty percent of revenge porn content was recorded as “selfies.” In our society, in which seventy percent of Americans are active social media users, one in eight has been a victim of revenge porn. The “first ever nation-wide study to profile the rates of nonconsensual pornography victimization and perpetration” determined that women are 1.7 times more likely than men to be victimized or threatened to have their content released, and other sources report that at least eighty percent of revenge porn victims are women. These women are most often within the age of fifteen to twenty-nine years old. Forty-seven percent of victims contemplate suicide after learning about the dissemination. Furthermore, revenge porn websites have recently multiplied in number, adding to the already large availability of pornographic sites that likewise allow users to post and reproduce the content. Whether the private content is disseminated by text message, e-mail, on a social media platform, or on a site tailored specifically for revenge porn, the perpetrators often publish the victim’s personal information such as her name, address, social media profiles, and employer’s information.
Despite these findings, federal and state judicial and legislative systems have remained stagnant in creating laws that help revenge porn victims find recourse. As discussed in further detail below, Congress has yet to pass any federal law that protects victims of revenge porn. Although forty-five states have passed revenge porn laws to date, many such laws are too narrow or too broad in breadth, allowing perpetrators to circumvent them or challenge their constitutional validity. Furthermore, only eleven states provide civil remedies for victims of revenge porn. On the one hand, the increasing number of state legislatures that enact revenge porn statutes is telling of the severity of the issue and the dire need for a federal law. On the other hand, even where laws that seem to protect victims exist, victims may face gender bias in the courtrooms, a bias of which is often injected directly into a judicial opinion’s interpretation of a statute’s language.
In this Article, I seek to create urgency around the need for effective revenge porn laws to protect our increasingly vulnerable society. In Part II, I discuss the existing alternative legal frameworks that victims may pursue where revenge porn laws do not exist or have otherwise been held unconstitutional. I shed light on the shadow taxonomy that pervades the judicial language of the very few revenge porn cases that have been litigated vigorously enough for courts to produce opinions. I also explore the history of revenge porn laws in Minnesota with specific reference to Minnesota Statutes section 617.261. In Parts III and IV, I discuss the First Amendment as it applies to the State v. Casillas decisions.Specifically, in Part III, I summarize the Minnesota Court of Appeals decision in which the court overturned the respondent’s conviction under section 617.261 under the overbreadth doctrine. In Part IV, I analyze the Minnesota Supreme Court’s reversal of the court of appeals’ holding under the strict-scrutiny analysis.