Basically legal: Montana fails to protect victims of revenge porn. Why? | Features

At a Fourth of July party in 2016, a stranger approached Hannah Jennaway, then 21, with an unsettling question:

“Are you the girl in the Snapchats I just got?”

Jennaway’s stomach sank. “No,” she lied. She knew what the girl was referring to and hated imagining anyone watching it — especially someone she didn’t know. As the night went on, more people texted her asking about the Snapchat videos they’d received of two people having sex, including a girl who looked just like her.

Earlier that day, Jennaway went cliff jumping at Ennis Lake with a group of friends. Worn out after a day in the sun, she returned to Bozeman with two friends to clean up before going to a party to celebrate the Fourth of July. While Jennaway’s friend Dilan Koelzer, then 20, showered, Jennaway and her other friend went into Koelzer’s bedroom, pushed a couch against the door because it didn’t have a lock and started having sex.

Minutes later, Jennaway noticed someone had pushed the door open and come into the room. The lights were off and it was dark until a bright light flashed to her right. She held her arm out in front of her face.

“Stop, Dilan. Go away,” she told him.

After that, Jennaway said she knew Koelzer remained in the room but didn’t realize he was taking videos of her.

When it was over, Jennaway checked her phone. She had three Snapchats from Koelzer. In the first Snapchat video, she watched herself put her hand out to tell him to stop. Jennaway felt uncomfortable about the fact that he had filmed her having sex, but assumed the videos had only been sent to her. She didn’t confront him about it right away.

Later that night at the party she realized, horrified, that many people had received them.

Because Snapchat deletes its data, it’s impossible to know exactly how many people received the videos, but the citation eventually filed against Koelzer claims it was at least eight.

“I think he just went down his Snapchat list,” Jennaway said.

Non-consensual porn, commonly called “revenge porn,” involves the distribution of sexual or nude images of people without their consent. Thirty-eight states in the U.S. have laws that make it illegal, and Montana was on its way to join them in the most recent legislative session until, unexpectedly, the bill failed.

House Bill 129 was one of a handful of bills that sought to amend Montana’s sexual assault laws. Six other bills did pass with bipartisan support — redefining the legal definition of rape in Montana and rescinding parental rights from rapists whose victims became pregnant. HB 129 initially performed well, passing the House 95-5 and then breezing through second reading in the Senate 49-1.

But in the senate judiciary committee, the portion of the bill that criminalized the distribution of intimate images against someone’s consent was removed. In that version, the bill wouldn’t protect people who took images of themselves and sent them to an intimate partner expecting they would be kept between the two of them. Sen. Keith Regier, R-Kalispell, explained to the Senate that the amendment was intended to place responsibility on “selfie senders,” even if their intimate photos are later distributed without their consent.

“Protection for the selfie sender was taken out by removing the words ‘or distribute,’” Regier said to the Senate during the bill’s second reading. “It was felt that personal responsibility needs to be a part of the issue. We are all told that your email, Youtube, Facebook, whatever can be out there for everyone to see forever. There was some concern in committee over a naive underage person being taken advantage of as well, but even they need to know that there are consequences for their actions.”

After that change, HB 129 failed in an unusual 0-50 vote in the Senate. Removing punishment for distributing images without permission made the bill stray too far from its original intent, making former supporters vote against it.

The bill was sponsored by Rep. Ellie Hill Smith, D-Missoula, who was confident it would pass. She has been advocating for the criminalization of non-consensual porn for years and was shocked when a reporter called her to ask about the failed bill as she drove away from Helena, certain that battle was over.

“For four years I’ve said that revenge porn is one of the most important pieces of legislation for women, in particular for young women,” Smith said. “This is the new generation’s way to assault people and bully people.”

The evolution of the smartphone over the past decade has brought instant messaging and photo sharing devices into the hands of nearly every American teen. A 2017 study by the AP-NORC Center for Public Affairs Research found that 89 percent of teens between 13 and 17 have access to a smartphone.

 

Snapchat, an app that allows users to take photos and videos that expire after 1 to 10 seconds or after closing out of the image, is the second most popular social media platform among teens, with 26 percent reporting that they use it “almost constantly.” Another 31 percent said they use Snapchat several times a day.

Since its introduction in 2011, Snapchat use has skyrocketed. In the first quarter of 2017, Snapchat users were sending more than 3 billion snaps every day.

Young people use smartphones to document nearly everything. It’s incredibly easy to keep track of what other people are doing, where they are and who they’re with, using social media.

But the ease with which people can capture and share photos and videos has ramifications. Issues of privacy, the permanence of digital data and the impossibility of tracking where and how it is used make it all too easy for images and information to be used as weapons. And in Montana, sharing intimate photos of people or filming them without their consent remains basically legal.

When Jennaway later confronted Koelzer about the videos, she said he didn’t seem remorseful, which upset her more. She tried to be proactive about dealing with how violated she felt. She called one of the girls who received the videos to tell her she hadn’t consented to their creation, and that she was embarrassed. Jennaway resented feeling like a victim — it wasn’t something she was familiar with, she said.

“I finally decided to tell my sister, and I felt so weak and like everything had been taken away from me,” Jennaway said. “And she said ‘Hannah, it doesn’t matter that he was your best friend. You need to tell someone about this.’ So that’s when I was like, ‘OK, maybe this will make me feel better, because nothing else is.’”

Jennaway reported the incident to police. After her testimony, they brought Koelzer into the station, where he admitted to filming and sending the videos. Because Montana doesn’t have a statute specific to non-consensual pornography, he was charged with “surreptitious visual observation or recordation,” which makes it illegal to purposely film someone in a private home using an electronic device without the occupant’s knowledge.

After a few months, a trial date was set for Aug. 17, 2017.

The surreptitious observation statute doesn’t mention consent or distribution, so Koelzer was within his rights to film and send the videos as long as his defense attorney could prove Jennaway knew he was doing it — even though she told him to stop, and never gave him permission in the first place. Koelzer did not respond to multiple calls for comment.

Jordan Salo, the Deputy County Attorney in Gallatin County who took Jennaway’s case, said she’s never seen a case like that in her two years as a prosecutor —  not because they don’t happen, but because of how difficult it is for victims to report such a personal violation, she said.

“They’re rare because people are ashamed to come forward,” Salo said. “The factual basis behind Hannah’s case is extremely sexual in nature, just like any revenge porn or really anything like this is extremely sexual. It’s not easy for people to come forward and tell their story to police officers and then again when our office gets the case.”

A 2016 study by the Data and Society Research Institute found that one in 10 women under the age of 30 have experienced threats of non-consensual image sharing. That number increases among gender and sexual minorities like Jennaway: 17 percent of LGB internet users have either had an image shared without their consent or have had someone threaten to share an image of them. That threat is especially dangerous and traumatic for those whose sexuality remains private.

Koelzer pleaded not guilty up until the day before trial — Aug. 16 — when he changed his plea to guilty. Jennaway wrote a victim impact statement to read at the sentencing hearing. The courtroom was so small that she ended up sitting in the same row as Koelzer’s mother. After he pleaded guilty, Jennaway went to the stand holding a notecard on which she had written her main points in pencil. She focused first on what she had lost as a result of the videos, followed by things she gained:

Lost: initially, my confidence, sense of self esteem, self respect, & my former idea of identity. 

I could have crumbled and victimized myself, but chose to seek help/validation. Lost interest in intimacy for a little short of a year from crime. Once found partner, experienced panic attacks/intensified anxiety after intimacy.

Gained: strength in adversity, confidence in my ability to overcome hardships, better understanding in types of people I want in my life. Even more self-awareness. Advocacy.

“It was scary and pretty emotional,” Jennaway said of her time on the stand. “But I felt really free afterwards.”

Koelzer was sentenced to 80 hours of community service for misdemeanor surreptitious visual observation or recordation. Salo, the prosecutor, said the trial would have been difficult without access to the Snapchats to use as evidence and without a statute that addresses consent.

“It’s hard enough for these victims to come forward, but when we have laws that are so technical about knowledge and don’t have anything about consent, it’s going to make it even harder for them to come forward because they are so hard to prosecute. Through this case, I learned just how much we are missing in our laws compared to other states.”

A more common instance of non-consensual pornography involves photos that are taken consensually and sent to an intimate partner with an assumption that they will remain private. Sometimes out of revenge after a breakup, a partner will make them public, but not every case involves malice.

Natasha Sullivan, a 21-year-old UM student, sent intimate photos of herself to someone she was romantically involved with and had known for years. She sent them over Snapchat, which sometimes offers an illusion of safety, since they disappear after a certain amount of time unless the viewer screenshots them, in which case the sender is immediately notified.

Sullivan never received any notifications of screenshots, so she assumed the photos had disappeared. One day, though, she found out that someone she had never been intimate with or shared images with was bragging about having seen her naked. The person she sent the photos to had used an app that allows people to screenshot Snapchats without notifying the sender. She doesn’t know how many times he screenshotted photos without her knowledge.

“I don’t know what pictures, I don’t know how many, I don’t know who’s seen them and I don’t know if they still exist,” she said.

“It was infuriating, it was violating and it also made me sad, because there was someone that I trusted that wouldn’t give me that dignity and respect of keeping those photos between us,” Sullivan said. “And at first, I did feel shame … But the more I thought about it, the more I realized that there is absolutely no shame in sending these kinds of pictures to someone that you trust.”

Sullivan said she refused to succumb to the embarrassment that could have gripped her. She wanted the person who shared the photos without her permission to feel it instead, because he was the one who had violated her trust.

“The shame doesn’t lie with me. It lies with the individual who shared those photos.”

While Montana doesn’t have a law against distributing intimate photos of people without their consent, University sexual misconduct policy does prohibit it. The policy bans the “non-consensual distribution of photos, other images, or information of an individual’s sexual activity, intimate body parts, or nakedness, with the intent to or having the effect of embarrassing an individual who is the subject of such images or information.”

Jessica Weltman, UM’s Title IX coordinator in the Office of Equal Opportunity and Affirmative Action, handles reports of sexual misconduct. Violating University policy could result in mandatory training, suspension or expulsion, which is decided by an administrative process that is separate from criminal processes.

Sullivan confronted the person who distributed her photos, and at first he denied having shared them. She blocked him on all social media until, eventually, they were able to talk through what happened and are now on good terms. Sullivan knows this isn’t the approach that would work for every victim, but she believes he learned from what happened and understands how violating it was. She said she knows other women who have had the same experience, and she advises them not to feel ashamed of sending the photos.

“It’s empowering to be a sexual person and to own that. And you can still be smart, you can still get a good job, and those things aren’t mutually exclusive.”

Montana significantly revamped its rape statute in the past legislative session by framing it around the presence of consent. Both Republicans and Democrats recognized the importance of that shift, but when it came to sharing intimate images, the argument didn’t stick.

Robin Turner, the public policy and legal director for the Montana Coalition Against Sexual and Domestic Violence lobbied in support of the non-consensual porn bill before it failed. Turner said amendments changed the intention of the bill, causing her to rescind her support.

Regier’s suggestion that victims who took and sent intimate photos of themselves deserve consequences made it impossible for her to support the bill in its final form, Turner said. HB 129’s failure reflects a resistance to the idea that consenting to sharing intimate photos with one person is different from consenting to sharing them with many people. But as with sexual assault, consent is at the heart of this issue, Turner said.

“To us, it’s very similar. It’s the same concept: that survivors have the right to bodily autonomy, which includes being in control of their images as well.”