New York Penal Law 245.15, Unlawful Dissemination or Publication of an Intimate Image, joins Unlawful Disclosure of an Intimate Image, NYC Administrative Code 10-180 (10-177*3), as one of law enforcement's weapons to combat "Revenge Porn" when sexual, naked and intimate images are shared without consent to friends, colleagues, employers, and family members or uploaded to the internet on sites including Reddit, Instagram, Youtube, Facebook or even Pornhub. Unlike its administrative code “sibling” that applies solely to offenses in one of the five boroughs, Penal Law 245.15 casts a far wider net throughout the state whether an incident occurs in Manhattan, Brooklyn, Westchester, Rockland, Putnam, Dutchess or any other county or municipality.
Whether used as a means to humiliate, “sextort,” harass, or damage another’s professional career, finances, or emotional health, a victim may have recourse in the Criminal Court after an arrest by the police, Family Court as part of a petition for an Order of Protection, or Civil Courts through a lawsuit seeking punitive and other damages. Regardless of what route one chooses to pursue as a complainant or as an accused in a criminal proceeding, the guidance and advocacy of a Revenge Porn lawyer can make the difference between a just and proper resolution or one that saddles you with a lifetime of regret.
Understanding the Crime: Definitions and ElementsBefore addressing the statutory language of PL 245.15 and the elements of one of New York’s Revenge Porn laws and crimes, both an accused and an accuser must understand what constitutes an “intimate image” or a legally defined “intimate part” that would give grounds for the police to make and arrest, a Family Court to issue a Restraining Order, or a plaintiff to commence a civil action. Pursuant to subsection (1)(a), the picture or video must depict (i) a naked or exposed intimate part – genitals, naked pubic area, anus or a woman’s nipple – of the complainant’s body or (ii) the complainant engaging in a sexual activity such as intercourse.
Assuming the above elements are satisfied, an accused must also have the objective and intent to emotionally, financially or physically harm his or her target when the image, video or other recording is published, posted to the internet or disseminated in another fashion. Further, either directly through the picture or through other information or details provided, the person who is the subject of this offense must be identifiable. Additionally, the sharing of the intimate image must not only occur without the consent of the depicted person whether or not the initial recording was consensually created or shared, but the depicted person must have had a reasonable expectation that the photograph or video would remain private.
Beyond the above requirements, it is of critical important that the alleged abuser knew, or reasonably should have known, that the depicted individual intended that the image in question remain private.
Penalties and Punishment: Jail, Financial Exposure and Other Legal SanctionsDepending on the type of action commenced, the penalties, punishment and sanctions will vary.
Criminal: Possible Incarceration
Solely from a criminal justice perspective, a conviction of and for Unlawful Dissemination or Publication of an Intimate Image is punishable by up to one year in jail. While not mandatory and allowing for probation, community service and other conditions, the law permits a judge to sentence a defendant to about any length of incarceration up to the one year maximum in a local or county jail. In New York City – Queens, Brooklyn, Bronx, and Manhattan – the time spent behind bar is at Rikers Island.
Orders of Protection: Criminal and Family Court
Other than imprisonment, an accused should expect that the District Attorney will pursue, and the court will grant, an Order of Protection or Restraining Order that prevents any and all contact by the claimed purveyor with the purported victim. This would likely occur within moments of an accused’s first step in a courtroom at his or her arraignment. Remember, even if complainant does not report this type of abuse to the police and there is no arrest, that person can still file for a Stay Away Order as a petitioner in Family Court as long as the parties qualify as “intimate” partners or “members of the same family or household” pursuant to the Family Court Act. It certainly behooves a petitioner to seek the assistance of an experienced Family Court lawyer to draft and file the petition to best ensure the relevant and important facts and evidence are presented to the presiding judge. Similarly, a respondent, like a defendant in Criminal Court, should also retain the best possible legal advisor. All parties should be aware that whatever occurs in one proceeding may be used in another action.
Civil Rights Law 52-B: Private Rights of Action
Any person depicted in a still or video image has a cause of action – a potentially viable lawsuit – in a civil court where the alleged tormentor not only harassed, annoyed or alarmed the target of the publication, but even where he or she merely threatened to disseminate the intimate image without consent and never actually doing so.
If the lawsuit is successful, a judge can award a plaintiff injunctive relief, punitive damages, compensatory damages and reasonable court costs and attorney's fees.
Hypotheticals: Example and ScenarioA young woman sends her boyfriend a picture of her in a sexually explicit position with part of her face exposed as well as one breast and some of her vagina. Alternatively, consensually recorded, two partners, irrespective of gender, each keep a copy of a sex video. In that video, one partner is saying the other’s name as to identify him or her as he or she is being sexually penetrated.
Assuming these images are uploaded to Instagram, Facebook, Reddit, Pornhub or any site, or the recordings are sent to colleagues, friends or parents, and the distributor of the video is doing so with the intent to emotionally, financially or physically harm the other person, the alleged wrongdoer has violated Penal Law 245.15.
Collateral Issues: Other Legal Actions, Careers and Immigration StatusIt should go without saying that an arrest or conviction for Unlawful Dissemination or Publication of an Intimate Image will not only cast any person in an overwhelmingly negative light and potentially in the press, but a conviction will without a doubt endanger, if not decimate, careers and futures. Even outside the criminal justice process, an adverse finding in Family Court or in a civil proceeding can be equally debilitating. Whether a government employee working at the MTA, a teacher employed by the Board of Education, a broker regulated by FINRA or an attorney, accountant or physician answerable to a professional association, the consequences of any action are as terrifying as they are ravaging. Should your situation be compounded due to a visa or green card, know that a finding of guilt at trial or as a result of a plea can potentially be deemed a Crime Involving Moral Turpitude and leave you with irreversible immigration consequences.
Your Defense: Your FutureJudges or prosecutors who will sympathize for or with a defendant or respondent accused of Unlawful Dissemination or Publication of an Intimate Image are likely few and far between even where there is a presumption of innocence. While an accusation does not mean the law has been violated or that an accused is guilty of anything, taking the right steps and implementing the best strategies to protect yourself as a victim of Revenge Porn or as a defendant in a criminal, civil or Family Court case cannot be overstated. Whether you seek to end your abuse with the assistance of a Revenge Porn victims’ rights representative outside the courtroom or you find yourself on either side of a proceeding in Criminal, Family or Civil Court, there is no substitute for the experience, knowledge and advocacy of the former Manhattan prosecutors at Saland Law.
Remember, you cannot change the past, but you can stand up for and protect yourself to prevent a bad decision from ruining your life. Secure the right counsel to guide you through the process. Seize control. Take charge of your future now.
Call the New York lawyers and former New York City prosecutors at (212) 312-7129 or contact us online to aid you in protecting your rights, future and interests today.