G. BUBNYTE
An Eye for a Nude Picture: Revenge Porn Criminalisation in the U.S.
Abstract:
This essay focuses on
revenge porn, a harmful practice involving the non-consensual sharing of
pornographic images that is in 90 percent of cases directed towards women,,
whose physical and psychological well-being is greatly affected. To cease the
practice, legislature has been put in place. In the case of the United States,
the law is justified on the Right to Privacy. Therefore, it is the fact that
the victim can be identified in the picture that is criminalised, not the
non-consensual sharing of the image. The essay argues legislature is not enough
of a deterrent to stop revenge porn. Social reform is needed alongside. This is
because current cultural discourse views women as either ‘virgin’ or ‘whore’.
If a woman tries to step outside these boundaries and assert her own sexuality,
she deserves to be corrected and shamed. The essay concludes that without a
shift in social perceptions about women, we cannot end revenge porn and achieve
a more gender-equal society.
Though revenge porn can affect any gender, the predominant victims are women. According to the European Institute of Gender Equality (EIGE, 2017), 90% of the victims are female. The permanence of the images online has devastating effects on their careers, mental health and safety. Usually, it does not take long to find the identity of the victim: the perpetrator most often makes sure to share the woman’s name, address and Facebook profile. This puts her life at risk due to continued harassment and may incite her to change her name, job and location. In some cases, it can even lead to the victim’s suicide (Franks, 2015). As an example, one revenge porn victim attempted suicide due to fear of losing her job and having her reputation ruined (Bates, 2012). Other have lost their jobs, as in the case of a high school teacher in Florida, who was asked to resign after the discovery of her nude modelling photographs (Patton, 2015).
Considering its detrimental effects as well as it being an appalling privacy violation, I believe this practice calls for criminal punishment. Furthermore, as the problem is gendered, the policy implications inevitably affect the larger debate of gender equality. In recent years there has indeed been an increase of laws prohibiting the distribution of intimate images without consent. Although many other countries have penalised revenge porn, the United States, due to its attachment to the First Amendment, has faced specific challenges in doing so (Koppelman, 2016).
It is relevant to investigate the case of the United States and its policy implication as it highlights more explicitly the issues that can come with revenge porn criminalisation. By trying to circumvent free speech, the harm of non-consensual pornography is instead criminalized as theft of one’s creative property. This approach lacks social condemnation as what is harmful is not taking the victim’s picture without asking but rather, turning them into a sexual object without consent (Waldman, 2017). Therefore, the social implications and gendered relations of revenge porn should be considered, to be able to effectively fight against it and strive for a more gender-equal society. I intend to do so by assessing the stigmatisation of women’s nude images, which usually employs the “virgin/whore” dichotomy, and by looking into how this affects their social opportunities.
This essay aims to answer the questions: how was policy against revenge porn established in the United States? What are the drawbacks of a purely legal approach to the issue? And, finally, how does revenge porn highlight the wider issues of gendered relations?
This essay will first consider the global debate of revenge porn and policy implications in terms of gender equality. Subsequently, I will look into the ways free speech was considered an obstacle in the United States and how the country circumvented the First Amendment to criminalize revenge porn. Nevertheless, while legal measures were put into place, they still highlight a lack of social condemnation of revenge porn. For this reason, I will critically assess why revenge porn reflects a bigger issue of how we view women and how solving it through law may not be enough.
Revenge porn: the big
picture
To better understand why measures need to be taken to combat revenge porn, it is relevant to dive into the origin of the term and discuss in more detail the consequences the practice has on victims’ lives and autonomy.
Origin of revenge porn
Though the term ‘revenge porn’ has only been added to the Merriam-Webster Dictionary in 2016, the concept itself is as old as photography (Franks, 2017). Sharing explicit images without the subject’s consent has always been an incentive to undermine the victim’s success and even Marilyn Monroe was subjected to such humiliation in 1949 (Scheller, 2015). In the 1980’s, the American magazine Hustler started a feature in which readers were encouraged to submit pictures. Those images were most often published without the consent of the depicted women, as a way for an ex-partner to get revenge or simply because they were stolen (Franks, 2017). Although,these instances were limited to a specific audience only with the emergence of the internet, the practice exploded and its reach extended from small circles to a global set of eyes. What before would only be seen by family and perhaps co-workers, can now be seen by the whole world. The sharing of revenge porn was incentivised by the emergence of websites such as IsAnyoneUp.com and later, MyEx.com which ensured the poster’s anonymity. The large following of these platforms (IsAnyoneUp.comamassed 300,000 unique daily views every day when it was still running) ensures that the posted pictures do not go unseen (Scheller, 2015). Whether the initial motivation for sharing the sexual imagery is intentional harm to the victim or rather fame and/or profit, there are sure to be detrimental consequences for the sexualised target.
The consequences of non-consensual pornography
As previously mentioned, the victims of revenge porn are almost always women. The harms they suffer are great, as it affects their mental health, career, education and safety. Speaking out about revenge porn can be just as stigmatised and detrimental as is speaking about sexual assault and domestic violence. Thus, it is only recently that the true effects of the crime have surfaced (Citron & Franks, 2014). Non-consensual pornography raises the risk of physical attacks and stalking. Most pictures are shared with full details of the victim’s name, social media and home address, which invites viewers to send threatening messages or stalk the woman. Moreover, the attacks cause women grave anxiety. According to the CCRI’s quantitative research, women victimised by revenge porn report lower levels of psychological well-being (Ruvalcaba & Eaton, 2019). Anxiety can be accompanied with other mental issues, such as depression or anorexia nervosa, which in certain cases, lead to suicide.
The social consequences are also steep. Because the women’s identity is revealed, many lose their jobs. While recruiting, employers rely on the candidate’s online presence to judge if they are fit for the position. That makes it incredibly difficult for a victim of non-consensual pornography to find a job (Citron & Franks, 2014). Retreating from social media might also not be an option as the employer could find it suspicious. This makes the effects of revenge porn incredibly long-lasting, transforming “an original sin into an eternal one” (Patton, 2015, p. 410). The fact that it involves social media and the internet also makes it difficult for law enforcement to handle the cases appropriately and understand the scope of harm (Citron & Franks, 2014).
Considering the physical danger as well as the psychological and social harm revenge porn has on its victims, there has been a needed surge in policy criminalising the practice around the world. Both non-legal and legal action has been taken to protect the targeted and to punish the perpetrators.
Towards
policy implementation
It took a long while before any action was taken to criminalise the disclosure of unauthorised sexual pictures around the world. This is due to the fast development of technology, which means the law is always one step behind (Ryan, 2018). Philippines was the first country, in 2009, to enact a policy criminalising photo and video voyeurism (Anti-Photo and Video Voyeurism Act, 2009). The following year, a scandal ensued with the website IsAnyoneUp.com, where intensive campaigning by affected women resulted in the takedown of the website (Scheller, 2015). Since then, the debate around revenge porn has changed drastically. In 2015, companies such as Google, Microsoft, Facebook and Twitter implemented takedown procedures for the victims (Waldman, 2017).
The severity of internet harassment is getting traction in the rest of the world as well, with Japan, Israel and Canada criminalising the offence in 2014 and 2015 (Nigam, 2018). As for Europe, the EIGE (2017) conducted research on Cyber Violence Against Women and Girls, putting the problem on the map but not implementing policy across all countries in the EU under pretence that current law already protects against revenge porn (Ryan, 2018). Yet, some countries such as Malta, France, Germany and the United Kingdom have enacted laws that specifically target the practice (Nigam, 2018). While the short list of countries that have explicitly enacted laws against the practice is alarming, it also highlights how recent this issue is. Yet it does point out how the scarce legislature that is in place might not be the best way to protect the victim. The country that remains the best example of this complicated legislative process and the drawbacks it carries is the United States. Analysing this case can give a better insight into the role free speech and privacy laws play in drafting a concrete policy.
The United States and revenge porn criminalisation
It is relevant to consider the United States to clearly understand the role policy can play in ending revenge porn, and how the language used may look past the real problem of the practice that is non-consensual sexualisation. Looking at the U.S. specifically is particularly interesting due to its notably strong attachment to free speech, the First Amendment. When considering the criminalisation of revenge porn, free speech was used as an argumentto explain why federal laws could not be put in place. The argument has substance: free speech protections do apply to the Internet (Kitchen, 2015). Some content is considered an exception to the amendment, such as “incitement, threats, obscenity, child pornography, defamation of private figures, criminal conspiracies, and criminal solicitation” (Koppelman, 2016, p. 662). Revenge porn does not fall under any of these categories as it is a very new concept involving ever evolving technologies (Kitchen, 2015). Thus, any State law that criminalises the practice runs into conflict with the First Amendment, without a federal law put in place first. While there is validity to bringing up the First Amendment, it also promotes the idea that women’s sexual autonomy is less important than constructed social American values, especially considering that other regulations of speech, such as fraud, go uncontested (Citron & Franks, 2014).
However, legislators in favour of criminalizing the practice have been able to circumvent this argument, namely through the Right to Privacy. In 1890, lawyers Warren and Brandeis argued that the privacy of the individual should be protected under criminal law. They stated their case in a law review article, which became heavily influential in the United States (Kramer, 1989). Since then, federal laws such as the Privacy Act of 1974 have been put in place. Considering that private information about the victim is shared alongside the sexually explicit image, there are clear implications for a law as their right for privacy is undermined (Citron & Franks, 2014). These arguments are what spearheaded the federal Intimate Privacy Protection Act, established in 2016. It states:
This bill amends the federal criminal code to make it unlawful to knowingly distribute a photograph, film, or video of a person engaging in sexually explicit conduct or of a person's naked genitals or post-pubescent female nipple with reckless disregard for the person's lack of consent if the person is identifiable from the image itself or from information displayed in connection with the image. The bill establishes exceptions to the ban (IPPA, 2016).
This accompanied numerous state laws criminalising revenge porn (Franks, 2017). As of now, 46 out of 50 U.S. states have laws against revenge porn according to the Cyber Civil Rights Initiative (CCRI, 2019). All of them differ slightly in how they handle the crime. However, criminalising the issue comes with certain challenges. Firstly, with the rapid development of the internet, revenge porn may evolve in ways that do not fall under the Intimate Privacy Protection Act. For example, the law as it is now only protecting one’s privacy, therefore if the victim’s sexual image cannot be traced back to them, it would not be taken down. Simultaneously, if legislators do not use a definition that is specific enough, some argue that it would cause a halt to innovation and infringe on speech (Scheller, 2015). For instance, it could criminalise sharing explicit images that at first glance, are indistinguishable from revenge porn imagery, yet they were shared consensually (Franks, 2017). Therefore, context is crucial and some point out that it is necessary for the law only to tackle the privacy issue, not the posting of the image itself.
However, this specific approach is the main issue with American and other legislation: it is not the act of non-consensual sexualisation that is punishable by law, but the infringement of one’s privacy, in other words, taking the image without asking (Waldman, 2017). Such a law lacks the social condemnation the practice requires;meaning that even if the perpetrator is brought to court, the true harm they have caused – negatively affecting a woman’s both physical and psychological well-being and safety – is not actually considered or imprinted on them. If the victim is not identifiable, one could continue posting non-consensual images, causing further harm. Therefore, the law in place fails to teach a lesson and deter the practice from happening, which shows a lack of care towards the non-consensual sexualisation of women.
Going beyond legislation
Considering the impact of revenge porn on victims’ lives, it is obvious this practice needs to be criminalised. The right steps have been taken in order to make revenge porn punishable by law. However, the current legislative language does not accurately tackle the problem, shifting the attention to one’s right to privacy rather than non-consensual sexualisation. Hence, taking only a legislative approach may not be enough. Reform needs to happen on all levels – legislative, technological and social – if we want to achieve a more gender equal society (Franks, 2017). The practice of victimising women through revenge porn is aided by the current gender roles and stereotypes in place. With further analysis of the current gendered society, we can have a better understanding of why social reform is necessary.
You’re either a virgin or
a whore: a critical debate
Revenge porn most often targets women, with 90% of the cases being directed at female victims. In order to explain the reason why this is a gendered issue, one should look at the gender roles women occupy in patriarchal society. Patriarchy is understood as an ideological system that favours masculinity over femininity and that hands the power to men, therefore serving “male interests at the expense of women” (Madsen, 2000, p. xii). This societal structure imposes two divergent representations of women and their sexuality in current widespread cultural discourse. On the one side, there is the moral, nurturing and asexual woman; on the other, it is the hypersexual, erotic and unethical ‘slut’. In other words, this is the virgin/whore dichotomy (Wyman & Dionisopoulos, 2010). While the dichotomy applies to all women, it is undoubtedly racialized. Black women have long been deemed as ‘sexually immoral’, meaning they had to defend their ‘virtue’ first before they could bring attention to more general reforms (see hooks, 1990). While no attention has been given to racial or other differences between women in previous revenge porn research, it is important to acknowledge how the construction of harmful cultural perceptions is intersectional on the levels of race, gender and sexuality. Therefore, the virgin/whore dichotomy has greater effects on non-white and non-cisgender women.
This dichotomy between the ‘virgin’ and the ‘whore’ aids the patriarchal needs and keeps women in their respective places, without the possibility to assert their own sexual autonomy. For instance, by equating hyper sexuality to unethical behaviour, a woman who asserts her own sexual side becomes one that deserves to be corrected. In such a case, sexual violence subjected against her is justified as her own fault (Wyman & Dionisopoulos, 2010). This keeps women compliant to traditional gender roles. If she is scared to go out by herself because she may be sexually assaulted or if she does not take revealing pictures of herself because they may be shared, then she obeys to the patriarchal rules of respectful ‘virgin’ behaviour (Bates, 2012). If she breaks those rules and societal expectations, then she deserves the consequences.
This perpetuates the “purity myth”, which entails that for a woman to be successful and moral, she must be pure (Bates, 2012). This means behaving in socially acceptable ways, such as getting married, having children and not having casual sex. In contrast, men are confronted with different standards they should follow in terms of their sexuality, where their sexual autonomy aids them in being perceived as successful. This is one reason why men may be incentivised to share pornography with other men: the objectification of women can help affirm their masculinity with one another (Salter & Crots, 2015). This practice, of course, points at the toxic construction of masculinity, which may also be harmful to men themselves, however in different ways. But on the Internet, they are able to assert their sexuality more freely than women. That is why a “dick pick” does not usually have the same social effect as an image of women’s naked genitals: it is rather perceived as “men being men” (Bates, 2012). This, amongst other things, is linked to men’s sexual activity being a point of pride (Citron & Franks, 2014). One, of course, cannot undermine the social consequences men might face if they became victims of revenge porn, especially in terms of finding a job and making sure their online presence is not tainted. Nevertheless, they are unlikely to experience the collectivised campaigns of ongoing targeted abuse that women face. This is because such coordinated action is carried by men who assert their masculinity by putting women back in their respective place (Salter & Crots, 2015).
Therefore, revenge porn is not only harmful because it infringes on women’s privacy as perceived by the legislature; it is a practice that, on the larger scale, denies women their sexual autonomy and reflects upon gender inequality in our current society. The consumers of revenge porn do not just look at the image because it is sexually explicit: they specifically choose such content because the women did not consent being looked at. That is the “point of the spectacle, the factor that provides the erotic charge” (Franks, 2017, p. 1254).
If we want to strive towards gender equality, the harmful social construction of the woman as either ‘virgin’ or ‘whore’—the sinner that deserves her punishment—needs to be considered. Without a shift in social perception of the woman, legislation alone cannot solve the existence of revenge porn and other sexual violence against women.
Conclusion
In conclusion, though revenge porn is a relatively new phenomenon, it has serious consequences on affected women. It involves sharing a non-consensual sexually explicit image, usually accompanied by personal information. As such, victims tend to lose their jobs, develop mental health issues and their safety is compromised. For these reasons, technological, legislative and social reforms are needed. Internet giants, such as Google, Facebook and Microsoft put bans on non-consensual pornography, but controlling technology is difficult due to its innovative nature. In terms of legislature, recent years show an increase of actions taken to criminalise revenge porn. In the case of the U.S, the First Amendment proved to be an obstacle, but it could be overturned with the help of the Right to Privacy. In 2016, the federal Intimate Privacy Protection Act was established, together with criminal laws in 46 states. But while criminalisation is a step towards the right direction, it does not immediately solve the social problem of women being villainised for asserting their sexual autonomy. Revenge porn is just an example of the gender-based sexual violence which is established to keep women in their traditional gender roles. It is important to note that while women are most often the victims of revenge porn, men are also targets and can face similarly difficult implications of having their non-consensual images posted online (Henry & Powell, 2014). In fact, it may be even more stigmatising for men to seek justice, which could affect their mental health. Very little research has been done on the topic. Moreover, current research does not consider the differences in women in terms of race and sexuality. A more intersectional approach would be beneficial when considering the social implications of revenge porn. These gaps of knowledge limit the full understanding of this complicated issue. However, the argument remains that gender equality cannot be reached and gender-based violence, including revenge porn, cannot be solved without first considering the bigger picture of gender relationships and their origins.
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