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. The case is pending. In the lawsuit, he says it was his ex-girlfriend who has lashed out at him after their relationship ended after near a year, and that the criminal charges against him are false.
His attorney, Samantha Halliburton, did not return a call seeking comment. The Federal Aviation Administration shows Rodenburg is a licensed commercial pilot, but does not say which airline.
No guaranteed anonymity
The Denver Post interviewed a 44-year-old Denver woman who has filed a criminal complaint under the revenge-porn law and who requested that her name not be used to protect her privacy. She said an ex-boyfriend shared with their co-workers intimate photos she had given him.
“I didn’t expect that picture to go elsewhere,” she said.
Part of the problem, she said, is that there is no guaranteed anonymity in reporting the crime or filing a lawsuit over revenge porn, as there would be for a sexual assault victim.
Prosecutions are difficult, she said, because of that embarrassment: “People just figure they need to deal with it, and that it’s their problem, and they don’t want to share their shame in it.”
Elizabeth said her case remains under investigation, a process that takes longer than she expected.
“Of course I want something to happen right away, but it’s taken many months, and that’s an eternity sometimes,” she said.
The stigma of embarrassment, shame or ridicule often prevents someone from seeking redress, Kirsch said, especially in conservative circles.
“You have people of cultures, immigrants, who deal with ostracization that stretches deeply into real risk,” Kirsch said. “There could be religious issues. There are senior citizens of a different social time. So many factors. Just that someone was young and dumb completely minimizes it.”
In a recent national survey, the Cyber Civil Rights Initiative found that one in eight social-media users has been a target of non-consensual pornography, even though 38 states have some type of law criminalizing the conduct.
A federal bill to make it a crime to distribute explicit photos of someone without their permission was introduced last year by Rep. Jackie Speier, a California Democrat.
It sits in the House Judiciary Committee with nine bipartisan co-sponsors, none from Colorado.
