It was October  2013, when California Governor Jerry Brown signed the revenge porn bill SB 255 into law. According to this law, it is a misdemeanor to post sexually explicit images or videos of another person online without permission, when doing so causes the person to suffer deep emotional distress. Pursuant to Penal Code 647j4 PC, conviction carries up to 6 months in jail and a fine of up to $1,000.00.

Legal Defenses to a Revenge Porn Charge

Usinga a good legal defense, defendants may contest a charge under this statute.  Some strong defenses are:

1. The “no intentional distribution” defense,
2. The “no intent to cause emotional distress” defense, and
3. The “consent” defense.

Penalties on Convcition of a Revenge Porn offense

This California misdemeanor is punishable by time in county jail for up to six months and/or a maximum fine of $1,000. A judge could also sentence the defendant misdemeanor (or summary) probation instead of jail time.

The California criminal defense attorneys at Spodek Law Group will show you the following in this article:

1. Under what circumsntaces is revenge porn a crime?

1.1. Image of the intimate body part of another identifiable person

1.2. Intentional distribution

1.3. Instances of no guilt

1.4. Assembly Bill 602

2. What legal defenses are there?

2.1. No intentional distribution

2.2. No intent to cause emotional distress

2.3. Consent

3. What penalties can one face on conviction?
4. What offenses are related to the revenge porn statute?

1. Under what circumsntaces is revenge porn a crime?

The burden of proof on the prosecutor to convict a defendant of violating California revenge porn laws includes:

1. Demonstrating that the defendant had an image of the intimate parts of another identifiable person, or an image of that person engaged in sexual intercourse, oral copulation, masturbation, sodomy, or sexual penetration,
2. Demonstrating that the defendant intentionally distributed that image,
3. Demonstrating that the understanding between the defendant and the other person was that the sexual images and/or nude photos would remain private,
4. Demonstrating that the defendant knew or should have known that the distribution of the image would cause the other person emotional distress, and
5. the other person suffered emotional distress.1

Penal Code 647j4 details situations when a person is not guilty of a crime.  Also, a recent piece of legislation, Assembly Bill 602, grants certain victims the right to sue.

Defining Terminology

The meaning of the terms the intimate body part of an identifiable person and intentional distribution. often come into question.

The meaning of “Image of the intimate body part of another identifiable person”

Pursuant to PC 647j4, an “intimate body part” means any portion of the genitals, the anus, and on a case female, any portion of the breasts below the top of the areola.

The “identifiable person” part means that it is probable that someone could identify the victim.

The meaning of “ Intentional distribution”

A person “intentionally distributes” an image if they personally distribute it or intentionally causes another person to distribute it.   This can include sending the image via email, text messages, social media, another electronic device, as well as in person.

When is a person not guilty of violating 647j4 PC?

The statute states that a person is not guilty of violating PC 647j4 in the following scenarios:

1. in the process of reporting unlawful activity,
2. when obeying the terms of a subpoena or other court order for use in a legal proceeding, or
3. when functioning in the course of a lawful public proceeding.

The introduction of Assembly Bill 602

AB 602 is a recent piece of California legislation appoved in 2019 by California Governor Gavin Newsom that gives victims of fake sex videos the right to sue the person who created it or shared them. This right to sue exists when the person depicted in the video never consented to its release or creation.

The fake videos targeted by this statute are known as pornographic “deep fakes.”  These recordings graft the face of one person (frequently a celebrity) into a pornographic film without that indviduals consent.

2. What legal defenses are there?

The top three legal defenses to these criminal charges are detailed here.

The “No intentional distribution” defense

A valid defense is when an accused can say that alhtough he or she may have distributed explicit images, he or she did not do so intentionally.

The “ No intent to cause emotional distress” defense

Another strong defense is for an accused to say that he or she did not have the knowledge that it would cause the victim any distress. Perhaps, for instance, the accused posted an image as a prank and thought the other person would find it funny.

The “Consent” defense

If an accused can show that the alleged victim of revenge porn consented to any distribution of the intimate photos, then they cannot be found guilty on this charge

3. What penalties can one face on conviction?

The crime of revenge porn is a California misdemeanor

punishable by time in county jail for up to six months, and/or a maximum fine of $1,000.

The penalties are steeper if the defendant has one or more prior convictions for revenge porn or the victim was a minor. In such cases, conviction carries to up to one year in jail, and/or a fine of up to $2,000.

Persons accused of this crime may also be looking at lawsuits in civil court.

4. What offenses are related to the revenge porn statute?

PC 647i – The peeking while loitering law

18 U.S. Code 1801 – The federal “video voyeurism” law

PC 647j – The criminal invasion of privacy

If you or someone you know has been accused of a crime in violation of the California Revenge porn law in Penal Code 647j4 PC, please call us.  The experienced California criminal defense attorneys at Spodek Law Group will give you a free consultation to begin discussing options on how to resolve your matter and get the best outcome possible.  Reach out to us today!