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Opinion: Revenge Porn: Is Shaming Criminal?

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A woman sends a naked selfie to a man. She poses for him or they make a sex tape. It's fun, it's hot; it feels transgressive but also safe, because they trust each other to keep it confidential.

Until she leaves him. Then he's pissed. Really pissed. Pissed enough to send that selfie to a porn site, maybe adding her phone number and an invitation to solicit her sexual services. She starts getting texts from horny strangers. Employers, school admissions committees or voters google her. And unless she's applying for a job as a porn star, that image of her spread labia does not improve her résumé. The woman feels not only betrayed but also frustrated and fearful.

"Revenge porn" — the nonconsensual dissemination of someone's nude or sexually explicit photograph or videotape — is high school hallway slut shaming magnified and immortalized by cybertechnology. It reminds women that while the internet can loosen gender constraints, it can also reinforce them. A study of teenage sexting, for instance, found that while boys and girls sent explicit pictures in about equal numbers, boys forwarded them more. Revenge porn is overwhelmingly a man-on-woman crime.

So it's not hard to understand why the House Committee on Judiciary is introducing a bill to add Vermont to the 16 states that have outlawed revenge porn. H.105 amends Vermont's voyeurism statute to "create criminal sanctions and civil remedies for the display or disclosure of sexually explicit images without the subject's knowledge or consent." The penalty is two to five years in prison, fines of $1,000 to $5,000 or both. The victim may also seek civil damages.

That length of incarceration makes the offense a felony, which carries with it the economic and social disadvantages wrought by a criminal record. As a sex crime, a revenge-porn conviction could trigger registration as a sex offender.

Lead sponsor Barbara Rachelson (D-Burlington) told me the bill is a work in progress. She's not certain if the punishment outweighs the crime, and isn't keen on incarceration anyway, which she calls expensive and largely ineffective. The committee has heard testimony from the American Civil Liberties Union, which says that such laws run afoul of the First Amendment by criminalizing speech that is vile but protected. The law could also have unintended censorial consequences, such as indictment for "display or disclosure" if a reporter linked a story on revenge porn to a revenge-porn site.

So if there are already civil procedures that would get the photos off the web and hold the offender accountable, Rachelson said, Vermont may not even need this new law.

There are — and it doesn't.

A victim can sue for unauthorized public disclosure of private information, infliction of emotional distress or defamation. Cyberstalking law might protect her. In addition, the Digital Millennium Copyright Act compels copyright violators to remove stolen content. University of Arizona law professor Derek E. Bambauer proposes making the subject of "intimate media" collaboration a copyright holder, rather than just the person who held the camera.

Of course, a lawsuit may nab the offender long after his poison has been sprayed indelibly over the internet. And federal law exempts the sprayers — websites — from liability for illicit third-party postings. Still, it allows the FBI to take down a porn site that, say, fails to confirm the models' ages. And if a site owner demands payment for removing a photo — as these scumbags do — that's extortion.

As for more distant collaborators, like the employers who fire a worker whose picture turns up online, they can be sued for sex discrimination.

But, let's face it, life online can be nasty and risky. Anonymity fosters noxious speech; virality abets hysteria. For convenience, visibility and connection, we risk privacy and security. Every day we type our credit card numbers onto the screen, give out our mothers' maiden names and the last digits of our Social Security numbers.

Sex is no different. Revenge-porn artists don't depend on women's naïveté for their operations. It is doubtful that, as Rachelson told me, "a lot of women think they are in control of where their images go on the internet." In one Pew Research Center poll, large majorities said they felt their personal information is not secure when they use social media, text or communicate by email.

We transmit digital sexual self-portraits in spite of the known risks because texts and selfies are part of the lingua franca of erotic communication, as they are of all communication.

This doesn't excuse revenge porn. It just makes it, sadly, ordinary.

However, like all sexual and cyber perils — such as the purported armies of online child molesters and child pornographers, or the craigslist "sex traffickers" (who turn out to be adult sex workers, advertising) — this one is typically represented as huge and growing. Revenge porn is "an epidemic that has only begun to be addressed," writes the web-based Women Against Revenge Porn. "The internet provides a staggering means of amplification, extending the reach of content in unimaginable ways," write University of Miami Law School associate professor Mary Anne Franks and University of Maryland law professor Danielle Keats Citron in a law review article.

If victims don't show up — no constituent asked for Vermont's law — it's because they are hiding, this logic goes. "The world will not recognize the true nature and vastness of this issue until its victims and those closest to them begin to speak up," proclaims End Revenge Porn (ERP), a project — the only project, it seems — of the Cyber Civil Rights Initiative (CCRI), on whose board Franks and Citron serve.

This purported vastness is "substantiated" by dicey statistics — a survey of women aggrieved enough to visit ERP's site, or the parsing of 2009 U.S. Bureau of Justice Statistics data to conclude that "850,000 individuals experienced stalking with both online and offline features." Not only does this tell us nothing about the prevalence of revenge porn, but the study in question was revised because the researchers overcounted online harassers by including persistent spammers and bill collectors.

Revenge porn is described as uniquely, permanently traumatic. Each newspaper article features a tale of extravagant, years-long torture. A troubled boyfriend of Harvard student Lena Chen posted naked pictures of her. Because she'd blogged openly about her sex life, the trolls declared open season. Forums critiqued her body. A cyberstalker's rumors drove her lover from his job. "[U]nable to write, sleep, eat" or leave the house, Chen moved off campus and eventually left the country. "This was a terrorizing invasion of privacy that altered my reality and irrevocably changed the way I live, think and write," she wrote.

In reality, as more of us compete for attention on the web, the best most of us can hope for is fleeting "micro-celebrity" — or, in this case, micro-notoriety. But in the revenge-porn stories, the photos never sink to the search engine's depths; the trolls never move on.

Most pernicious — not least because it trivializes corporeal violence, the kind you cannot escape by turning off your computer — is revenge-porn rhetoric's conflation of speech with violence. ERP calls it "cyber rape." A cosponsor of Illinois' new law criminalizing revenge porn told the Huffington Post, "We believe it is a form of sexual assault." The law, which imposes sentences of one to three years and fines up to $25,000, is considered the toughest yet. It was crafted with the help of CCRI, which also sent Franks to Vermont to testify. In terms of incarceration, Vermont's bill is tougher.

Why not use the civil statute we've got to go after people who abuse the internet to avenge their hurt pride? What makes revenge porn different from, say, identity theft? I asked Rachelson.

"In some ways, it isn't different," she replied. "But one way is how our society views sex. If somebody steals your Social Security number, you may feel embarrassed, but there's not that same kind of shame."

So shaming is felonious?

I don't want to minimize the hurt this behavior can inflict. But enforcing revenge-porn law would require excessive surveillance of sexual speech online, curtailing everyone's freedom. Creating a new felony sex offense will put more guys in prison, and then on the registry. This will not help them become more gracious ex-lovers.

The most frequently suggested temporary solution is to stop sexting, or to send your dirty Valentines on paper. Such recommendations are like trying to prevent teen pregnancy by preaching abstinence.

But there is a way to foil the revenge-porn artists, without the assistance of prosecutor or personal injury lawyer. Resist shame. Online sex has made us bolder and less self-conscious. Those photos once expressed affection and bodily pride. These bastards should not be given the satisfaction of making them ugly. Shame only works if its object capitulates to feeling humiliated. If women refuse, the avenger loses his most powerful weapon.

The original print version of this article was headlined "Is Shaming Criminal?"

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