crimesider

Judge throws out New York "Revenge Porn" case

CBS News

New York's first "revenge porn" court case was thrown out last week by a Manhattan judge who ruled that a man who posted nude pictures of his then-girlfriend to Twitter didn't commit the crimes with which he was charged.

Advocates say the case highlights a need for more legislation to criminalize "revenge porn," or the online posting of explicit photographs without the consent of the person in the image. In some revenge porn cases, victims give the photos to a dating partner consensually - but don't consent to the photo being shared publicly.

Ian Barber, of Brooklyn, was accused of posting nude photos of his ex-girlfriend on his Twitter account and sending them to the woman's employer and sister last year. Barber said the woman gave him permission to post the photos, though the woman denied that she did.

The case "appears to be the first in which a New York court has considered criminal charged stemming from what has come to be known as "revenge porn," Criminal Court Judge Steven Statsinger wrote in his ruling. The dismissal was first reported by the New York Daily News.

Barber was charged with aggravated harassment, dissemination of unlawful surveillance and public display of offensive sexual material. While the judge ruled that the conduct of 29-year-old Barber was "reprehensible," he nonetheless did not "violate any of the criminal statutes under which he is charged."

Advocates agree.

"Given the charges levied against this defendant, none of them were applicable in this case," University of Miami Law School professor Mary Anne Franks told CBS News' Crimesider. "It's a textbook example of why there's a gap in the law."

According to Franks, the judge didn't err in his ruling - rather, the problem is a lack of legislation that criminalizes non-consensual pornography, a practice advocates say can be devastating for victims.

"It seemed like a concerted effort to cause [the victim] humiliation, substantial emotional distress and really to scare her," said Danielle Citron, a professor at the University of Maryland's Carey School of Law. "I think it should be criminal behavior. It sounds like in New York, the statute doesn't really capture the wrong."

The state's "dissemination of an unlawful surveillance image" statute requires that the perpetrator obtains the image unlawfully, which wasn't alleged in the case, the judge ruled. The harassment charge required that the perpetrator send unwanted communication or threats to the victim, which also wasn't alleged.

Barber was also charged with the public display of offensive material, but the judge ruled that "merely posting nude pictures on a Twitter account or sending them to a small number of private individuals does not violate this section."

Only three states - Alaska, New Jersey, and most recently, California - currently have legislation that criminalizes revenge porn, said Citron, author of the upcoming book, "Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment." While New York is one of 13 states that currently has "revenge porn" legislation under consideration, it's not yet on the books.

Not all revenge porn laws are perfect, Citron said. California's law, for example, has come under criticism from advocates because it doesn't protect victims who take photos of themselves that are later shared without their consent.

In large part, the lack of legislation across the country is because because of a lack of awareness, Citron said, along with an attitude that victims assume the risk when they share intimate photos. However, she said, just as one might entrust a neighbor with an alarm code with the expectation that that they keep it private, "consent is contextual."

"What we entrust with someone for one purpose, they can't then use it for another," Citron said. "Consent is bounded by the situation in which it's given."

Victims coming forward to share their stories publicly has had a large impact when it comes to new legislation being drafted, she said.

'In the last six months to a year, victims have come forward in a way that's so brave - it makes their privacy invasions more public - to speak about revenge porn," Citron said. "I think lawmakers have started to really understand the grave harms it causes and have moved forward trying to act to protect victims."

  • Erin Donaghue

    Erin Donaghue covers crime for CBSNews.com's Crimesider.

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