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"Revenge porn" law in California a good first step, but flawed, experts say

Dr. Charlotte Laws became involved in combating "revenge porn" after a topless picture of her daughter was posted online Charlotte Laws

Dr. Charlotte Laws (above) became involved in combating "revenge porn" after a topless picture of her daughter was posted online
Charlotte Laws
(CBS) - Dr. Charlotte Laws became the "Erin Brockovich of revenge porn" by accident. In January 2012, her 25-year-old daughter learned that her computer had been hacked and that a topless photo she'd taken of herself was posted on a website called IsAnyoneUp.com, and was making the rounds on social media.

"I was sucked into it," says Laws, a former Los Angeles City Commissioner. "I was willing to do anything. I just wanted to get that picture down."

For two weeks, Laws devoted her entire life to just that. Laws says she sent take-down notices to the website, Google and Facebook saying the photo was obtained illegally. It would come down for a while, but, she says, it would keep popping back up.

"My husband was like, 'Don't worry, it'll go away eventually,'" she remembers. "But that's not what happens with the Internet. It just multiplies!"

Laws told CBS News' Crimesider that only after she got the FBI to open an investigation did the photo - and, eventually, the website that initially posted it - finally come down for good. But Laws was not done fighting. She and her family had gotten a hard lesson in the reality of what has come to be known as "revenge porn" - essentially, the posting of explicit photographs without the consent of the person in the image - and what she discovered was that there were thousands of victims of this practice but almost no recourse for them, since only one state had a law against the practice.

That may be starting to change. Thanks in part to Laws' advocacy, California became to second state, after New Jersey, to enact legislation making some kinds of revenge porn illegal. Senate Bill 255, signed into law on Wednesday by Gov. Jerry Brown, renders it a misdemeanor to publish images of another person without their consent "with the intent to cause serious emotional distress." The punishment for such a crime is a fine of up to $1,000 and up to six months in jail.

Revenge porn and sexual cyber-bullying have made the news lately, from the Steubenville rape case to the cases of teens Audrie Pott and Rehtaeh Parsons, both of whom committed suicide after explicit photographs of them were distributed among their peers, after alleged rapes. And in the ensuing outrage, there have been louder calls for legislation and criticism of law enforcement for falling behind the rapidly changing technological landscape.

But change hasn't come easy. University of Miami Law School professor Mary Anne Franks tells Crimesider that a bill that would have made some kinds of revenge porn illegal in Florida died in committee in April. And while Laws says she's pleased that her home state has moved "in the right direction," she and other cyber-stalking advocates and experts say the California law has a gaping loophole: the statute does not cover photographs initially taken by the victim. So it wouldn't have helped Laws' daughter get justice. Neither would it apply to people who, for example, send an intimate photo of themselves to someone who then disseminates that image without their permission.

Franks says that this oversight is an example of the "victim-blaming" attitude many people have when it comes to intimate photos sent over electronic media. Danielle Citron, the author of the upcoming book "Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment," agrees.

"Consent is contextual," says Citron, a professor at the University of Maryland's Carey School of Law.  "Consent to sharing with a loved one is not consent to sharing with the world."

The California statute has also been criticized for language stating that in order to run afoul of the law, the perpetrator must have distributed the image with "intent to cause serious emotional distress," rather than, as Yale Law fellow and Slate senior editor Emily Bazelon puts it, "treating the act of posting a sexual photo without consent as an objectively harmful invasion of privacy."

Holly Jacobs knows intimately how harmful an invasion of privacy sexual images posted online can be. Jacobs, a PhD living in Miami, says that beginning in 2008, her ex-boyfriend posted explicit photos and video of her - along with her name and contact information - on porn sites across the Internet. Jacobs had taken the pictures herself when the two were dating long-distance and using the computer to try and keep a physical relationship alive. When she discovered the photos, she went to police, but they told her the shocking truth: what her ex had done was simply not against the law.

Jacobs says she went to multiple police agencies, and heard lots of different excuses for why they couldn't help her: she was over 18; she'd given the pictures to her ex so they were technically his property; they didn't have jurisdiction over Internet activity. She says she was even turned down by the FBI.

"I couldn't believe that it wasn't illegal," she told Crimesider. "I started to blame myself. I thought, if they don't recognize this as a crime, it must be my fault."

The images became so ubiquitous that in 2012, just as she was about to get her PhD and start looking for a job, she made the decision to legally change her name: "There was no way I could network under this name that made me look like a porn star."

Although Jacobs says she definitely still hopes her ex "gets what he deserves" for what he did, she is now focused on helping other women who have endured similar trauma. She created a campaign and a website, EndRevengePorn.com.

"This is a form of sexual assault," says Jacobs. "Someone is violating you in a sexual way without your consent. And it doesn't just happen once. It happens over and over and over, every time you see a new picture, or get an email from someone who has seen you."

Like Laws, Jacobs says that she is pleased California has taken the issue on, but that from the research she has done, the majority of revenge porn victims initially take the photos themselves, and would thus find no justice through the law.

According to U-Miami law professor Franks, New Jersey's law is quite a bit better than California's, making non-consensual disclosure of an image - even if it was originally taken by the subject - illegal. Passed in 2004, Franks told Crimesider that the law made it possible for the state to prosecute Dharun Ravi for violating the privacy of his Rutgers roommate, Tyler Clementi, who committed suicide soon after finding out Ravi had recorded him having an intimate encounter with a man in the dorm room they shared.

And, in contrast to California's relatively minor maximum sentences for the crime, Frank says that in New Jersey the crime is punishable by three-to-five years in prison and a $30,000 fine.

Franks is currently assisting legislators in Wisconsin with a bill aimed at outlawing revenge porn and Citron is doing the same in Maryland. Both say they hope to help create stronger laws than the one that just passed in California, and that their ultimate goal is federal legislation.

"Most of the people who run these 'revenge porn' sites are twenty-something kids who don't care about civil suits because they don't have any assets," says Charlotte Laws. "But they are very afraid of law enforcement."

  • Julia Dahl

    Julia Dahl writes about crime and justice for CBSNews.com

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