Important Amendments to the “Revenge Porn” Statute

The General Assembly has amended G.S. 14-190.5A, the “revenge porn” statute. The statute now (1) applies to live streams as well as recordings, and (2) is not limited to images captured in the course of a “personal relationship.” However, it still leaves open questions about various types of digitally-generated images.

The original statute. The revenge porn statute was enacted in 2015. Jessie Smith wrote about it here. In general terms, the statute makes it a crime to disclose private, sexually explicit images of another without the other’s consent.

The amendment. S.L. 2017-93 amends the statute in two important ways.

• New definition of “image” includes “live transmission[s].” The statute applies to the disclosure of “images.” The original statute defined an “image” as “[a] photograph, film, videotape, recording, digital, or other reproduction.” That has been amended to “[a] photograph, film, videotape, recording, live transmission, digital or computer-generated visual depiction, or any other reproduction that is made by electronic, mechanical, or other means.” The inclusion of “live transmission” is particularly significant. It appears to be a response to the phenomenon of people live-streaming sexual, and even criminal, activity. This recent Newsweek article notes that “at least 45 instances of violence were enacted on Facebook Live, including murders, rapes, shooting, child abuse, torture, suicides and attempted suicides.”
• Statute now applies outside the context of a “personal relationship.” The original statute included the requirement that the person depicted had a “reasonable expectation of privacy” in the images, which in turn required that the images were initially shared within a “personal relationship” as defined in S. 50B-1. A “personal relationship” includes current or former spouses or household members, as well as “persons of the opposite sex who are in a dating relationship or have been in a dating relationship,” meaning “one wherein the parties are romantically involved over time and on a continuous basis[.]” Based on this definition, the revenge porn statute did not apply to images created during a same-sex dating relationship, or to images created during sexual activity outside of a continuous romantic relationship, e.g., during hookups and one-night stands. The amended statute gets rid of the “reasonable expectation of privacy” and “personal relationship” framework. Instead, it requires only that “[t]he person obtained the image without consent of the depicted person or under circumstances such that the person knew or should have known that the depicted person expected the images to remain private.” It is easy to imagine factual disputes about what one party should have known about another party’s expectations. Suppose that A hooks up with B and permits B to take explicit pictures during the hookup. There is no express discussion of the disposition of the images. B later shares the pictures with friends. A learns of that and contacts law enforcement. B is charged under the revenge porn statute. Should B have known that A expected the images to remain private, given that A allowed B to take pictures without expressly requesting that they remain private?

Using a computer to alter images. The amendment doesn’t definitively address some of the ways computers can be used to alter images and to create simulated images. The new definition of “image” does include a “computer-generated visual depiction.” This seems to cover digital photography or videography, but could it also apply to depictions that are created by a computer and are not based on actual exposure to a person’s intimate parts? For example, suppose that C is attracted to D but the feeling is not mutual. C has never seen D naked or had any sexual contact with D. Spurned and angry, C uses a computer to create a realistic likeness of a naked D, and then disseminates it. Does the statute apply? This isn’t a crazy hypothetical. This article, which contains explicit text but no inappropriate images, explains the phenomenon of “fake porn.”

My own view is that the revenge porn statute probably would not apply to C’s conduct. The definition of “image,” as a whole, is focused on actual representations, not synthetic creations. Moreover, the likeness created by C may not satisfy the requirement in subdivision (b)(3) of the statute that “[t]he depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image,” since the likeness does not really show D at all.

I would not be surprised to see further legislative activity in this area. The bill that amends the revenge porn statute also provides as follows:

The Joint Legislative Oversight Committee on Justice and Public Safety shall study the issue of improper disclosure of an image of a person superimposed onto another image of exposed intimate parts or depicting sexual conduct. The study shall include whether any existing crimes or civil actions currently apply and whether G.S. 14‑190.5A, as enacted, should be amended to include superimposed images. The . . . Committee . . . shall report its findings and any recommendations to the General Assembly by April 1, 2018.

Effective date. The amendment applies to offenses committed on or after December 1, 2017.