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Colorado’s revenge porn law brings nearly 200 charges, but getting convictions is a challenge – The Denver Post

A Colorado law designed to punish people for revenge porn — posting intimate photos of former lovers or spouses on the internet typically following a break-up — has resulted in nearly 200 charges since it was passed three years ago, but securing convictions and guilty pleas has been a challenge.

There have been 192 misdemeanor cases for non-consensual pornography filed since House Bill 14-1378 became law in July 2014. Just over a third of those have resulted in guilty pleas or verdicts, reflecting the difficulty of proving the cases but also, possibly, weaknesses in the law.

While law enforcement officials and victims advocates praised the law’s success, they remained measured because, The Denver Post found, many cases have been either dismissed or set aside in plea-bargain deals.

Also, it doesn’t appear anyone has yet used the law’s strongest tool at punishing someone for allegedly posting nude photos of ex-girlfriends or ex-wives — most of those charged are men — without permission: filing a civil lawsuit that offers guaranteed penalties of at least $10,000.

“It’s hard to know how many cases there might be because they are not filed as revenge porn,” said attorney Cassandra Kirsch, who has represented a handful of clients whose cases were settled before a lawsuit was filed. “And a lot of attorneys bring them under different theories, such as an invasion of privacy case or defamation or negligence. The law is relatively new, and a lot of people just don’t know they can file it.”

In a lawsuit recently filed in Denver District Court, a three-time Paralympian accuses her airline pilot ex-boyfriend of circulating nude photos she shared with him during their relationship. The unidentified 39-year-old woman’s lawsuit against her 41-year-old ex-boyfriend doesn’t use the new state law, but instead relies on laws aimed at defamation and invasion of privacy.

The Post found that most of the misdemeanor criminal charges filed under Colorado statute 18-7-107 — including one against the airline pilot — were accompanied by another charge, though 89 were filed by themselves, state court records show. There were 37 misdemeanor charges of posting intimate photos on the internet without permission that were part of a larger felony case.

Of the 192 cases filed, 117 have already been decided: 42 ended in a guilty plea or verdict, a 36 percent conviction rate, state court records show. Of the remainder, 27 were dismissed, three were acquittals, 26 were dismissed as part of a plea-bargain agreement, and 19 were dismissed as part of a deferred sentence deal. There were 75 cases still pending as of Sept. 1.

“Dismissals are unusual, but a vast majority of our cases will end up in plea agreements,” said Denver District Attorney Beth McCann, who voted for the bill as a legislator and now prosecutes the offenders. “It’s particularly difficult with cases where victims and perpetrators know each other, and this happens far too frequently with these.”

The law isn’t as clear as it could be, Kirsch said. For example, it does not apply to photos of someone who is clothed, even if they are engaged in a sexual act.

“If you have sexual activity and the victim is clothed, that’s not technically a violation since, in the case of oral sex, it’s the defendant’s body that is shown, not the plaintiff’s,” Kirsch explained.

That too few of the criminal cases have resulted in a conviction is not a surprise, she said.

“Firstly, how do you know they are the one to post the photo on the internet?” Kirsch asked. “There’s a difficult burden of proof. Often times it’s only the plaintiff’s word, and sometimes it’s the same photo that was shared with multiple partners. That’s difficult to unravel and difficult to hold people accountable.”

El Paso has most in state

With 15, Denver County ranks fourth for the number of revenge porn cases it has filed since 2014, tied with Larimer County, records show. Three were dismissed, and three others were dismissed as part of a plea-bargain deal in Denver. Two were dismissed in Larimer County.

Tops in the state, however, is El Paso County, with 32 revenge porn cases filed — the county where bill-sponsor Amy Stephens resides. Of those cases, nine were dismissed outright, four were dropped as part of a deferred judgment, and five others were dismissed on a plea bargain, records show. There were five guilty verdicts, and nine cases are pending.

“I’m actually pretty shocked by that,” said Stephens, who left the legislature in 2014. “I knew from the beginning that this would be tough to prosecute, but just because of that doesn’t mean you don’t do the right thing and make it a crime. A number of people are trying to get their justice and it’s not OK for people to get a free pass.”

A spokesman for El Paso County Prosecutor Dan May said he was away and unable to comment.

In her lawsuit, the Paralympian says her ex-boyfriend, Byron Rodenburg, allegedly posted the woman’s photos to a pair of pornographic websites in which users rate a person’s intimate parts. She has asked to remain anonymous in her lawsuit because of her status as a semi-public figure and because it could impact her regular job.

In court papers, the woman’s attorneys say about a half-million people have seen the photos, which included a caption with her real name and birthday. Some users tracked her down on Facebook and wrote to her, the lawsuit says, increasing her anxiety and trauma. The lawsuit says she’s since been diagnosed with post-traumatic stress syndrome.

Her attorney, Mark Jachimiak, did not comment.

“While in today’s world of technology it may be less shocking to learn that some couples take and share explicit pictures to use and share within the safety and confines of their partnership,” the lawsuit reads, “it is not commonplace to have one half of the partnership then post the pictures, along with a vulgar paragraph coined as an invitation to harm (the woman) on pornographic websites for hundreds of thousands of people to see.”

Rodenburg is also charged in Adams County with posting an image for harassment, a misdemeanor, and felony stalking, records show.

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Colorado Revenge Porn Statute Is Good Law and Sound Policy

On Thursday, Colorado Governor John Hickenlooper signed into law a statute criminalizing “revenge porn.” As professors with expertise in constitutional and criminal law, we commend the legislature and governor for their actions and hope other states will follow suit.

Revenge porn–more accurately known as “non-consensual pornography“–is the distribution of intimate pictures of another person without that person’s consent. One common scenario involves an angry former partner who wishes to humiliate. But roommates, landlords, voyeurs, and hackers have likewise obtained and distributed intimate pictures without permission.

Victims of non-consensual pornography suffer devastating harm. Unwanted publication of one’s intimate pictures can damage employment prospects, destroy relationships, and exact an immense psychological toll. Many victims experience intense harassment and threats to physical safety–both online and offline–as a direct result of the publication of the pictures. Several victims have committed suicide.

In recognition of these harms, twelve states, most recently including Colorado, have already criminalized non-consensual pornography. Legislation is pending in several others and at the federal level.

The new Colorado revenge porn law creates two misdemeanors. One applies when an individual posts intimate pictures to harass the victim by causing severe emotional distress; the other when the pictures are posted for monetary gain. Both offenses apply only to posting on social media either without consent or when the perpetrator should have known that the person depicted reasonably expected that the pictures would remain private. Neither applies to pictures related to a newsworthy event or to events related to public figures.

Some have questioned whether criminalizing non-consensual pornography infringes on protected expression. While this is an important concern, we believe that Colorado’s new law survives constitutional scrutiny. The First Amendment has never shielded all expression: the Supreme Court has held that the government can regulate certain unprotected categories of speech that, like non-consensual pornography, cause egregious harm and lack social value. Indeed, victims have already turned to civil remedies such as copyright law, which courts have repeatedly held constitutional. And the ACLU–typically critical of laws that infringe on expression–agrees that criminal laws can withstand constitutional scrutiny if they comply with requirements that the Colorado law meets.

It’s true that the Supreme Court has never explicitly addressed non-consensual pornography. But the Supreme Court had also never addressed obscenity until it addressed obscenity, nor had it addressed child pornography until it addressed child pornography. Technological developments enable both inspiring new forms of communication and awful new mechanisms of abuse. The First Amendment is subject to ongoing interpretation as the world it regulates continues to evolve. Non-consensual pornography closely resembles other forms of unprotected expression and should be categorized with them.

Others might object that non-consensual pornography–while repugnant–should not be criminalized because civil law provides adequate remedies. For example, copyright law allows some victims to sue for damages and have their pictures removed, and tort law permits suits for invasion of privacy, intentional infliction of emotional distress, and similar claims. Such lawsuits play an important role, but they provide an incomplete remedy. Civil litigation is expensive, and not everyone can afford a lawyer. Copyright law only provides a remedy when the victim owns the copyright to the picture, which is often not the case if someone else took the picture. Some perpetrators of non-consensual pornography are insolvent, so victims would recover little or nothing. Most importantly, even large civil damages awards won’t solve the real problem. Once published online, non-consensual pornography is often downloaded and reposted innumerable times. Preventing initial posting is critical, and criminalization supplies an important deterrent.

The new Colorado crimes will be Class 1 misdemeanors, punishable by a maximum $10,000 fine and a year imprisonment. This category also includes such offenses as unlawful telemarketing practices, late payment of gambling taxes, and failure to present evidence of car insurance. The serious harm caused by publishing intimate pictures without permission deserves punishment at least as severe as these acts. Indeed, some states have made non-consensual pornography a felony.

The law is legally sound and good policy. We are glad to have it on the books in our state.

Colorado’s New Revenge Porn Statute Is Good Law and Sound Policy – Huffington Post
http://www.huffingtonpost.com/ian-farrell/colorados-new-revenge-por_b_5427703.html
revenge porn – Google News… Read the rest