“Revenge Porn” Laws & Penalties

California Penal Code § 647j4

Can you get in trouble for sharing your ex-girlfriend’s nudes without her permission? Is it a criminal act to post videos online of your ex-wife engaged in sexual acts?

California Penal Code § 647(j)(4) makes revenge porn a crime. In California, it’s a criminal act to post sexually explicit pictures or videos of someone without their permission when doing so causes them a lot of “emotional pain.”

Examples

• Taking “nudes” your former romantic partner and uploading them to social media
• Filming a woman engaged in a sexual intercourse and then posting the footage on an adult website.
• Snapping “upskirt” photos of a woman with her permission but then disseminating them in a group text with your friends, something she hadn’t agreed to.

Possible Legal Defenses

Our California revenge porn charges DISMISSAL-oriented attorneys can argue that

• you lacked the intent to distribute the nude or pornographic images or footage
• you harbored no intention to inflict emotional distress on the victim
• the alleged victim consented to the distribution of the pornographic imagery or video
• the alleged victim did not actually sustain emotional distress or pain

Penalties

If you are convicted under California’s revenge, porn statute (section 647(j)(4) of the penal code), a California Superior Court can impose as punishment a term of incarceration for up to half a year in a county jail and/or the payment of a fine of $1000.00

In certain cases, the court can impose probation instead of jail time. However, if you violate any of the terms or conditions of your sentence during your probationary period (which can be for a number of years), you can be found to be in violation of probation which the court can then revoke and remand you into custody.

Our California criminal defense attorneys will provide comprehensive information on the following topics in this article:

a. When is revenge porn committed?

a.1. Image of the intimate body part of another identifiable person

a.2. Intentional distribution

a.3. Instances of no guilt

a.4. Assembly Bill 602

b. What are the legal defenses that exist when accused of Penal Code 647(j)(4) PC?

b.1 Accidental Sharing

b.2. No intent to cause emotional distress

b.3. Consent

b.4. No emotional distress

b.5. Insufficient visibility

c. Punishment, Penalties, and Sentencing.

d. Similar Offenses Related to Penal Code 647(j)(4) PC?

d.1. Peeking while loitering – PC 647i

d.2. Federal “video voyeurism” law – 18 U.S. Code 1801

d.3. Criminal invasion of privacy – PC 647j

California's criminal revenge porn law is found in Penal Code 647j4 PC

A. When is revenge porn committed?

Under Penal Code 647j4 PC, the prosecution must establish the following elements to prove guilt and secure a conviction:

1. You possessed a photo or video showing intimate body parts of another identifiable person or an image depicting your involvement in sexual activities.
2. You intentionally shared these intimate photos or videos.
3. Both parties agreed that the intimate content would remain private.
4. You knew or should have known that sharing the material would cause emotional distress.
5. The other person suffered emotional distress.

Important Definitions:

1. The intimate body part of an identifiable person
2. Intentional distribution

a1. Image of the intimate body part of another identifiable person

For the purposes of Penal Code 647j4, an "intimate body part" refers to any portion of the genitals, anus, and any portion of the breasts below the top of the areola for women.

Furthermore, an "identifiable person" exists when there is a probability that someone could identify the victim.

a.2. Intentional distribution

The element of intentional distribution of explicit material exists when:

• You personally effected the distribution.
• Willfully caused or induced another to carry out the distribution.

a.3. Instances when the distribution is not a crime

While the distribution of revenge porn materials is a crime, exceptions exist when:

• You are reporting an unlawful activity.
• You are complying with a subpoena or court order for use in a legal proceeding.
• Acting in the course of a lawful public proceeding.

a.4. Deep Fakes under Assembly Bill 602

California Assembly Bill 602 addresses deep fake videos and images involving real-life people, providing victims with the right to sue individuals who create or share such content. This right to sue exists if the person depicted in the content did not consent to its creation or release.

What is AB 602 for?

1. gives the “victims” of fake sex videos,
2. the right to sue the person who created it or shared it. [California Assembly Bill 602. California Civil Code 1708.85 CC. See, for example, Hill v. Heslep (Central District, Stanley Mosk Courthouse, Department 31, 2021) 20STCV48797.]

This right to sue would only exist if:

1. the person depicted in the video did not consent,
2. to its release or creation.

B. What legal defenses exist against alleged violation Penal Code 647j4?

If accused of revenge porn, various legal defenses are available:

1. Accidental Sharing:

Explanation: The defense of accidental sharing involves arguing that the dissemination of explicit material was unintentional and occurred inadvertently.

Example: A person might claim that they mistakenly posted the content on social media or sent it to others without intending to do so, attributing the act to a technological error or misunderstanding.

2. No Intention to Hurt:

Explanation: This defense asserts that there was no deliberate intent to cause emotional pain to the other party by sharing explicit material.

Example: The accused may argue that they believed the sharing was consensual, or that they did not foresee the potential emotional distress it could cause. This defense focuses on the absence of malicious intent.

3. Consent:

Explanation: The consent defense involves claiming that the person depicted in the explicit material agreed to its sharing, either explicitly or implicitly.

Example: If there is evidence of prior agreement, such as explicit permission given by the person in the images, it can be used as a defense. This defense highlights the importance of mutual agreement between the parties involved.

4. No Emotional Distress:

Explanation: This defense challenges the prosecution's ability to prove that the sharing of explicit material resulted in emotional distress for the depicted person.

Example: The accused may argue that there is no substantial evidence demonstrating emotional harm suffered by the individual in the pictures, even if they did not consent to the sharing. Without proof of emotional distress, the case may be dismissed.

5. Unclear Identification:

Explanation: The defense based on unclear identification contends that it is difficult to conclusively identify the individuals in the explicit material.

Example: If the images are unclear, pixelated, or otherwise obscure the identity of the persons involved, the defense can argue that the prosecution lacks clear evidence linking the accused to the explicit content.

Each defense strategy aims to challenge different aspects of the prosecution's case, emphasizing factors such as intent, consent, emotional impact, and identification clarity. The effectiveness of these defenses depends on the specific circumstances of the case and the strength of supporting evidence.

C. Punishment, Penalties, and Sentencing.

If accused of revenge porn in California:

• Sharing intimate pictures without permission is a misdemeanor, punishable by up to six months in jail or a fine of up to $1,000.
• For past convictions or if the victim is a minor, penalties increase to up to one year in jail or a fine of up to $2,000.
• Probation might be an alternative to jail time, but having a criminal record can impact job, education, and housing, and may lead to civil lawsuits.

D. Similar Offenses related to Penal Code 647(j)(4) PC

Revenge Porn is linked to several crimes, including:

1. Peeking While Loitering (PC 647i): Peeking into someone's home without distributing images.
2. Federal "Video Voyeurism" Law (18 U.S. Code 1801): Capturing private images without consent, regardless of sharing.
3. Criminal Invasion of Privacy (PC 647j): Invading privacy using devices without necessarily sharing images.

Note: It's not a defense to claim initial consent or legal age of the person in the pictures.

Having successfully petitioned for the removal or countless individuals from California’s sex offender registry and having achieved outright and total dismissals of felony sex crimes charges which our clients were facing before hiring us, Second Chances Law Group is uniquely qualified and experienced to undertake an aggressive defense of YOUR case.

Unlike our competitors, our representation is focused on the outright dismissal of YOUR case and not lazily cutting plea deals with bureaucrats that result in your conviction (and avoiding other egregious and sometimes lifelong consequences and repercussions that can impact almost every aspect of your life). Call us immediately for your complimentary consultation: 626-827-7222.