This bill has been amended

Bill S5949-2013

Establishes the crime of non-consensual disclosure of sexually explicit images

Establishes the crime of non-consensual disclosure of sexually explicit images as a class A misdemeanor.

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  • Jan 8, 2014: REFERRED TO CODES
  • Oct 9, 2013: REFERRED TO RULES

Memo

BILL NUMBER:S5949

TITLE OF BILL: An act to amend the penal law, in relation to establishing the crime of non-consensual disclosure of sexually explicit images

PURPOSE OR GENERAL IDEA OF BILL:

Relates to establishing the crime of non-consensual disclosure of sexually explicit images.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section, 250.70 to the New York Penal Law, which provides that a person is guilty of non-consensual disclosure of sexually explicit images when he or she intentionally or knowingly discloses a photo, film, or videotape of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without such person's consent.

Additionally, the disclosure must be without such person's consent and under circumstances in which the person has a reasonable expectation of privacy, meaning that the person has consented to the capture or possession of an image within the context of a private or confidential relationship.

250.70.1 provides definitions of "disclose", "intimate parts" and "sexual contact."

250.70.2 provides exceptions for lawful and common practices of law enforcement, and situations involving voluntary exposure in public or commercial settings.

250.70.3 Non-consensual disclosure of sexually explicit images is a class A misdemeanor and the person who discloses the photograph is also subject to a fine not to exceed $30,000 notwithstanding the provisions of subdivision one of section 80.05 of this chapter.

JUSTIFICATION:

In an era of increased text messaging, social networking, and emailing, people in intimate relationships sometimes share pictures with each other, some of which may be sexually explicit in nature. However, recipients of these images do not always keep the images within the confines of an intimate relationship, and have the ability to widely disseminate the photos on the Internet.

The non-consensual disclosure of such sexually explicit images, also known as "revenge porn" is often provided to Internet websites, and features photos sometimes accompanied by disparaging descriptions and identifying details, such as where the victims live and work, as well as links to their social network pages.

Posting these photographs online is damaging to the reputations of the victims. These photographs have extensive negative effects, including destroying future intimate relationships and educational and

employment opportunities. Victims are routinely threatened with sexual assault, stalked, harassed, or fired from jobs.

New York's current distribution of unlawful surveillance law only governs photographs taken without the subject's consent. This bill would govern photographs that are captured consensually, as part of an intimate, private relationship, which are later disclosed by an individual to the public without the consent of the individual photographed.

Criminalization is preferable to civil suits by victims because civil suits do not deter those who upload or disclose new images after a civil suit has ended. Furthermore, a lengthy trial is emotionally exhausting and prohibitively expensive. Moreover, the websites that distribute non-consensual pornography are given broad immunity for civil liability under federal law through the Communications Decency Act. Therefore, criminalizing disclosure of these photos may prevent websites from benefiting from the harmful images.

This bill is also narrowly drawn so as not to infringe on First Amendment rights, as there is no constitutional protection afforded to individuals who consume or distribute sexually explicit images of individuals without their consent. The bill also creates exceptions for lawful activity.

PRIOR LEGISLATIVE HISTORY:

None.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 5949 2013-2014 Regular Sessions IN SENATE October 9, 2013 ___________
Introduced by Sens. GRIFFO, LAVALLE, MAZIARZ -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the penal law, in relation to establishing the crime of non-consensual disclosure of sexually explicit images THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The penal law is amended by adding a new section 250.70 to read as follows: S 250.70 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES. A PERSON IS GUILTY OF NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES WHEN HE OR SHE INTENTIONALLY AND KNOWINGLY DISCLOSES A PHOTO- GRAPH, FILM, VIDEOTAPE, RECORDING, OR ANY OTHER REPRODUCTION OF THE IMAGE OF ANOTHER PERSON WHOSE INTIMATE PARTS ARE EXPOSED OR WHO IS ENGAGED IN AN ACT OF SEXUAL CONTACT WITHOUT SUCH PERSON'S CONSENT, AND UNDER CIRCUMSTANCES IN WHICH THE PERSON HAS A REASONABLE EXPECTATION OF PRIVACY. A PERSON WHO HAS CONSENTED TO THE CAPTURE OR POSSESSION OF AN IMAGE WITHIN THE CONTEXT OF A PRIVATE OR CONFIDENTIAL RELATIONSHIP RETAINS A REASONABLE EXPECTATION OF PRIVACY WITH REGARD TO DISCLOSURE BEYOND THAT RELATIONSHIP. 1. FOR THE PURPOSES OF THIS SECTION: (A) "DISCLOSE" MEANS TO SELL, MANUFACTURE, GIVE, PROVIDE, LEND, TRADE, MAIL, DELIVER, TRANSFER, PUBLISH, DISTRIBUTE, CIRCULATE, DISCLOSE, PRES- ENT, EXHIBIT, ADVERTISE OR OFFER. (B) "INTIMATE PARTS" MEANS THE NAKED GENITALS, PUBIC AREA, BUTTOCKS, OR FEMALE ADULT NIPPLE OF THE PERSON. (C) "SEXUAL CONTACT" MEANS SEXUAL INTERCOURSE, INCLUDING GENITAL-GENI- TAL, ORAL-GENITAL, ANAL-GENITAL, OR ORAL-ANAL, WHETHER BETWEEN PERSONS OF THE SAME OR OPPOSITE SEX. 2. THIS SECTION SHALL NOT APPLY TO: (A) LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT- ING, OR LEGAL PROCEEDINGS; OR
(B) SITUATIONS INVOLVING VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL SETTINGS. 3. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION 80.05 OF THIS CHAPTER, THE COURT MAY IMPOSE A FINE NOT TO EXCEED THIRTY THOU- SAND DOLLARS. NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES IS A CLASS A MISDEMEANOR. S 2. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.

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