Crime of Disclosing Intimate Images
We used to teach our kids about the birds and the bees and about drugs and alcohol. With the wide proliferation of electronic cameras and video recorders, especially on smart phones, we now have to teach them about the dangers of the sex tape. There is even a new term—“revenge porn”—to describe the dissemination of embarrassing images by jilted lovers.
Until last year, there was not much that the victim of an embarrassing intimate image could do once that image was publicly available. Now, at least, disclosing that image may be a crime.
As of September 2015, there is a new crime in Washington called “disclosing intimate images.” First offense is a gross misdemeanor, and second and subsequent offenses are class C felonies. This new law criminalizes the knowing disclosure of “intimate images” when the following are true:
- The person disclosing the image obtained it under circumstances in which a reasonable person would know or understand that the image was to remain private;
- The person knows or should know that the victim has not consented to the disclosure; and
- The person knows or reasonably should know that disclosure would cause harm to the victim.
An “intimate image” is an image taken of a person in a private setting that either depicts sexual activity or intimate body parts. Intimate body parts are defined to include “genitals, pubic area, anus, or post-pubescent female nipples.” When the legislature creates a list like this, anything not on the list is excluded, so pre-pubescent female nipples are not included. A person under 18 cannot commit the crime unless that person intentionally and maliciously discloses the image.
Here are a few scenarios to consider:
- A new girlfriend poses nude for her boyfriend because he makes her feel so beautiful. But then they breakup. Upset, he posts the nudes on a website. This is clearly a crime unless she had stated to him that she wouldn’t care if he shared the photos with others or if she consented to the posting. But what if she testifies that she never consented?
- A long distance romantic partner sends to her boyfriend a nude photo of herself. He shows it to his friends. Unless she said this was okay, this is likely a crime.
- Consider these first two examples but in a situation where the boyfriend honestly believes that his girlfriend does not care if he disseminates the images. His doing so would still be a crime if a “reasonable person” would have known that the girlfriend did not consent.
- Consider the first two examples but in a situation where the boyfriend only emails a photo to his trusted best friend. Assuming this is not okay with the girlfriend, this too would be a crime. The simple “transferring” of the image is “disclosure” under this crime. Publishing the photo is not required.
- Now consider the scenario where the boyfriend tells the trusted best friend, “She would kill me if she knew I emailed this photo to you.” If the best friend in turn sends the image to someone else or posts it so others can see it, that best friend may also be guilty of the crime even though he did not create the image.
- She is wearing a beautiful dress to a party. The dress is tasteful and not revealing. But, a photographer takes a profile picture of her where she is lit in such a way that the photograph shows her nipples. This may be a crime because the picture depicts “intimate body parts.”
- A woman briefly loses her bikini top in the ocean surf just when a photographer happens to take her picture. That photographer posts the photo on his website. That is a crime even though the woman is in public because exposure was not “voluntary.”
- A mother who feels that the body of a baby is beautiful takes a full nude picture of her baby and posts it on Facebook. Although posting pictures of prepubescent female nipples is okay, posting pictures of genitals or pubic areas is not. The mother can, however, show the pictures to friends and family because the statute specifically excludes this scenario.
- An image is posted on a website designed to show photographs. The owner of that website cannot be criminally liable for disclosure of that image.
The good news is that we now have a law that deters intimate partners from disclosing embarrassing, intimate photographs and videos to others. But everyone must be careful not to run afoul of this crime inadvertently. The best policy is to get the consent of those depicted in an intimate image before disclosing the image, no matter how you obtained it. Unless you trust those persons completely, best to get that consent in writing.
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