As a member of the House Judiciary Committee, I heard and discussed “revenge porn” legislation for four or five years. I could not agree more with the goal of the bill, which is to protect privacy. But I believe it is imperative that we concern ourselves not just with the rhetoric surrounding proposed legislation, but also the language of the proposed law. Because the details of the law determine how is implemented.
And the bill, as written when put to a vote, did not contain an important provision--which is that the material was made public with intent to cause harm, or did cause harm. Without this element, the law could have unintended consequences.
Intent and harm are essential aspects of the crime called “revenge porn.” Under the bill, as it was written, anyone who shared a photograph depicting nudity or sexual conduct could potentially be found guilty of the crime. But, images of naked people, sexually explicit images may at times be published or shared without causing any harm, even for public benefit.
Some of these images may be scandalous and ridiculous. Think of the infamous photos of Anthony Weiner that circulated in newspapers and online. Should it be up to the RI Attorney General to determine whether to charge, or a jury to convict, anyone who forwarded or received a link to such an image?
Other images may be of great consequence, be important for the public to see. I think of Nick Ut’s devastating and important photo of a young Vietnamese girl who had torn off her clothes after being burned by napalm, and how that image affected public understanding of the use of chemical weapons.
The bill had real consequences for free speech. This is why advocates, including lobbyists for the RIACLU, the Media Coalition, the First Amendment Coalition and the Motion Picture Association of America pointed out at the hearings and in written statements that the bill to criminalize “revenge porn” needed to specify harm to the victim or intent to cause harm.
When I asked the sponsor and AG lobbyists about the lack of defined intent I was told that more than 20 states have this law. But, I looked to our neighbors and found the following:
Although I stood alone, I had to vote NO and am greatly relieved that Governor Gina Raimondo vetoed 7537. Governor Raimondo suggests that we work in January 2017 to write a bill to deal with “revenge porn” without limiting our constitutional rights. I’m with her.