What every woman needs to know, according to legal experts.

By Jennifer Gerson
November 19, 2019

Earlier this month, Rep. Katie Hill, a freshman Democrat from California, resigned from her seat in Congress. While the congresswoman has admitted to having a romantic relationship with a campaign staffer and has denied having such a relationship with a current member of her staff, her resignation was largely based on the nude photos of her which were leaked to the press. Hill alleges this was done by her husband, from whom she is in the midst of divorcing.

As a result, many Americans heard the phrase “revenge porn” for the first time, since it became a staple phrase in headlines used to describe what Hill alleges her estranged husband did: released nude or sexy images of her without her consent. 

But is that phrase even accurate?

“The reason why it’s called revenge porn is how the topic came into public consciousness—it was originally something done as revenge,” JoAnne Sweeny, PhD, a professor of law at the University of Louisville, tells Health. Her research focuses on gender and the law, including the dissemination of people’s private, personal images without their consent.

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Erica Johnstone is a law partner at Ridder, Costa & Johnstone who specializes in privacy law and is the co-founder of the non-profit Without My Consent. In Without My Consent’s Lawyer Training manual, Johnstone writes that “the media coined the term ‘revenge porn’ because it’s two things people love—‘revenge’ and ‘porn’—so it works as a headline that grabs attention.”

However, the training materials explain that the phrase “revenge porn” is actually “a misnomer.”

The MO behind revenge porn

“Use of the word ‘revenge’ wrongly suggests that the victim did something that warranted this abuse, that they somehow deserve it,” says Annie Seifullah, law school graduate and advocate at victims' rights law firm C.A. Goldberg.

But revenge isn’t always the motive, Seifullah tells Health. The perpetrators of revenge porn often engage in the act for any number of reasons, including money, attention, and enjoying feeling powerful over someone else who is helpless to stop them in their actions. Those who commit revenge porn are engaged in a very specific type of abuse where they are able to cause massive damage for their victim’s lives in an incredible short amount of time.

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Seifullah also adds that the term "porn" is inaccurate, since it implies sexual content created for entertainment purposes, with the intent of widespread consumption—something that is very much not the case for those who have had intimate images, originally shared with a partner in a trusted and private exchange, publicly released.

“Whether the offender shares with a few people or posts to a public website, it is a unique and horrific type of violation. It is taking someone in their most intimate and vulnerable moment and ripping them open. It is a form of sexual assault,” emphasizes Seifullah.

That’s why Seifullah and her colleagues often use the terms “cyber sexual assault” or “cyber sexual exploitation” to describe these acts, even though they “are less widely recognized but more accurate terms than revenge porn,” she says.

Sweeny notes that, in general, “revenge porn” has most commonly been seen when a heterosexual couple splits. The male partner is upset and then goes on to publicize intimate photos or videos that the couple took while together to get back at the female partner for breaking up with him.

At one point, websites existed explicitly for the purpose of revenge porn. Men could use these sites to upload photos and videos of women they had been with in the past, including very identifying information about the women, such as names and social media handles.

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The creator of one such site was eventually sued, and the site was shut down after the owner contacted the women whose photos had been uploaded and told them he would have their content removed—but for a price. This extortion was illegal, though the revenge porn itself was not.

A lack of legal protection for victims

In the past few years, there has been a concerted push from states to start enacting various laws to criminalize this kind of behavior. Before these laws came into play, Sweeny explains, there was absolutely nothing illegal about revenge porn, and a person could release another person’s intimate images without any legal recourse.

Furthermore, the way in which the Electronic Communications Privacy Act is written means that websites, to this day, are not responsible for the content that is uploaded onto them. So even though some laws exist now to protect victims of revenge porn, it remains very difficult to get your images taken down once they’ve been released.

Still, there is no federal law criminalizing revenge porn. Some kind of law against revenge porn exists in 46 states and the District of Columbia. But many states, Sweeny explains, include an “intent” requirement to prove criminality under the law, making the non-consensual dissemination of intimate images illegal only if it can be proved that a defendant intended to cause distress to the victim.

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“That’s really hard to do,” says Sweeny, since a prosecutor is then forced to prove that a defendant knew for a fact that the release of such images would upset the victim and that was their motivation for doing it.

As an example, she points to the many incidences of celebrities having their nude photos leaked. "Those weren’t for revenge—it was just because it’s titillating stuff that someone wanted to put out there,” says Sweeny. “But the leaker wasn’t doing it to get revenge on Jennifer Lawrence.”

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Nonetheless, says Seifullah, “It’s important to know that a significant percentage of people who distribute intimate images without consent threaten to do it beforehand—often if the victim attempts to end the relationship, or if they refuse to send even more graphic images or videos. Victims should know that just the threat of sharing images can be an offense.”

Which is why states whose revenge porn laws are restrained by an intent clause can make things very difficult for victims. Other states may also have public interest exceptions, which again may focus too much on the defendant’s intent versus the harm done to the victim.

The connection to domestic violence

“Revenge porn is about power,” emphasizes Amanda Levendowski, associate professor of law and founding director of the Intellectual Property and Information Policy Clinic at Georgetown University Law Center in Washington, DC.

Seifullah agrees that revenge porn often occurs within a matrix of intimate partner violence, or IPV. Intimate partner violence commonly involves emotional and financial abuse, isolation, stalking, coercion, and spreading lies to undermine a victim’s credibility—all things commonly seen in revenge porn cases.

But the damage done to victims of revenge porn does not stop there. Offenders may send images to a child’s school or to a victim’s employer or co-workers, to harm a victim’s ability to seek or maintain employment or custody rights, explains Seifullah.

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Seifullah also notes that while “revenge porn” is commonly thought of as gender-based violence because it disproportionately affects women, it also disproportionately affects LGBTQ folks. “Both populations are already vulnerable to discrimination and marginalization,” she says.

A new way to fight back

Levendowski adds that though the legal landscape for defending victims of revenge porn remains complicated, she has found a path forward for some through the use of copyright laws. As most revenge-porn images are selfies that victims took themselves, Levendowski argues that the victims, then, have rights to those images as the creators of that content.

And just last month, the Illinois Supreme Court ruled to affirm that revenge porn is not protected free speech under the First Amendment, thus giving victims even more potential for legal recourse. “So abusers who think they are protected by the First Amendment and the freedom of expression should think again. The Illinois case is a hopeful indication to us that similar state laws will be upheld in favor of victims,” says Seifullah.

Another problem that victims may face, says Sweeny, is that “it’s mostly men running the criminal justice system and politics.” The decision makers often don’t recognize that a problem exists because they don’t see it happening to them.

Which is why Sweeny hopes we will see even more pushes forward when it comes to protecting victims of this kind of sexual violence. “We as a country, and a world, need to decide what kind of protections we want to give to people in this new form of public space [that exists online]. We still haven’t figured it out, and [the Internet] isn’t really that new.”

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