Revenge Porn Laws In California – Penal Code 647(j)(4)

Revenge porn refers to the publication of sexual images of another person who initially agreed to be photographed but did not consent to the dissemination of such images to others1. This law was created in 20132and then updated in 2014 to include selfies3  In most cases, a spurned dating partner, ex-spouse or enraged spouse has distributed these images on social media sites via the internet to shame or embarrass the person.

Another more common scenario has been the release of a sex tape involving a celebrity or other public figure. This is not blackmail if no threat to pay funds or perform a service had been made before the photos or images were distributed but a crime nonetheless.

How Does The Prosecutor Prove The Crime

Like any other criminal offense, there are elements to this crime:

  • You were in possession of photographs (images) of an identifiable person’s genitals or other intimate parts (breasts or anus) or images of that person engaged in a sexual act (masturbation, intercourse or oral copulation)
  • You intentionally distributed the image by either doing it yourself or arranging for another person to do so.
  • You and the person depicted had an understanding ( explicit or not) that the image would be kept private.
  • You were aware or should have been aware or knew that such distribution of the image would likely cause extreme or serious emotional distress
  • The person depicted did experience serious emotional distress

You intentionally distribute the images by either doing it yourself or arranging for another person to do so.
The depiction of an intimate part need not be a totally nude one if the body part can be seen through transparent clothing.

Note

The depiction of an intimate part need not be a totally nude one if the body part can be seen through transparent clothing.

Defenses To Revenge Porn

There are some defenses to being charged with revenge porn:

No Depiction of an Intimate Part or Sexual Act

The statute explicitly states that the image must be of someone’s intimate body part or of the person performing a sexual act. A photograph of someone in underwear or a bathing suit that is unflattering does not fit within the definition. Simulation of a sex act would not constitute depiction of a sexual act for purposes of the statute. Further, if the image of the person is vague or cannot be reasonably determined to be the alleged victim, then that person is not identifiable.

No Agreement or Understanding to not Distribute

If you took sexual pictures of another person with that individual’s consent but with no discussion of allowing others to see it, you cannot presume that the person consented to its distribution if you knew or should have known that it would cause serious emotional distress. For example, you should know that distributing it to that person’s co-workers or supervisors would be emotionally wrenching to them even if no discussion of distributing such images ever took place.

However, the individual whom you photographed might have consented to certain persons viewing it. So long as you only distributed it to them, then you abided by the understanding. An example might be distributing such images with that person’s consent to someone who wanted to paint a portrait of that person or who was interested in taking photographs of her or him for professional reasons but that individual then distributed the images to other persons, who should have known that it would cause serious emotional distress to the person depicted. Since you reasonably assumed this individual would not distribute the images to others, you are likely not guilty of any crime.

Lack of Serious Emotional Distress

You may have reasonably thought that distributing the image of a person’s intimate body parts might cause some embarrassment to that individual but not serious distress. You might demonstrate that by having others testify that the person was only mildly embarrassed or showed no real concern when he or she learned of it. Or, that other images of that person’s intimate parts or engaging in a sexual act had been previously distributed without any concern on that person’s part.

Distribution in Reporting of an Unlawful Act

It is not a crime to send photos or images of another person sexually assaulting another person to law enforcement authorities or some other administrative board since that person was engaging in an unlawful act.

Your reporting must have been done as part of reporting the unlawful act to such authorities or in response to a subpoena or other court order to be used in a court proceeding or lawful public proceeding.

Penalties For Penal Code 647(j)4

Revenge porn is a misdemeanor under California law. Possible penalties are:

PenaltiesMisdemeanor
FineUp to $1,000
ProbationSummary or Informal
County JailUp to 6 months
Sentencing Enhancement

Your sentence is enhanced if you were previously convicted of revenge porn or invasion of privacy under PC 647. If the victim depicted was a minor, you will likely face child pornography charges along with revenge porn charges.

Enhancement will result in possible jail time of up to one year and/or a fine up to $2000.

Related Crimes

Invasion of Privacy

Revenge porn is distinguishable from invasion of privacy. This crime entails the surreptitious recording of another person’s intimate body parts or of the individual engaged in a sexual act or of observing the person by use of binoculars or telescopes without consent4. The defendant must have committed the act with the intention of personal sexual gratification or arousal and the person observed or photographed had a reasonable expectation of privacy that you intentionally violated.

Peeking While Loitering

This code section makes it a crime to look or peek into a door, window or opening of an inhabited structure while loitering on private property or without a lawful business purpose with the owner under penal code 647(i)5.

Defenses to both invasion of privacy and to peeking while loitering may include your assertion that the person consented, had no reasonable expectation of privacy or that you had no intent to violate anyone’s privacy. If accused of loitering, you could show you had a lawful business purpose for being on that person’s property.

You might also assert you had no intent to arouse or sexually gratify yourself. However, if you were seen observing the person for several minutes then it could be assumed that you were so engaged.

Both of these offenses are misdemeanors with the same penalties and sentencing as committing revenge porn along with their possible enhancements.

Information On The Criminal Court Process For A Misdemeanor

Next Steps

If you have been arrested for a misdemeanor and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending misdemeanor case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Footnotes

  1.  California Penal Code 647  – (“Except as provided in subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . .. (j) . . . (4)(A) Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (B) A person intentionally distributes an image described in subparagraph (A) when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image. (C) As used in this paragraph, “intimate body part” means any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing. (D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies: (i) The distribution is made in the course of reporting an unlawful activity. (ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding. (iii) The distribution is made in the course of a lawful public proceeding. (5) This subdivision shall not preclude punishment under any section of law providing for greater punishment. (l)(1) A second or subsequent violation of subdivision (j) is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment. (2) If the victim of a violation of subdivision (j) was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.” []
  2. See Also SB 255 – California Legislature []
  3. Governor Brown signs Revenge Porn 2.0. The Sacramento Bee []
  4. California Penal Code 647 (j)(1) – Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments. (2) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. (3)(A) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.” []
  5. California Penal Code 647(i) – Who, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant. []