By: Nora Greene
Often referred to as ‘revenge porn,’[1] nonconsensual pornography (“NCP”) is a form of cyber harassment in which the perpetrator shares or distributes sexually explicit image(s) of the subject without their consent.[2] Perpetrators may leverage the sexually explicit images to damage the victim’s career, educational opportunities, and familial relationships.[3] Nonconsensual pornography that is posted publicly or that a perpetrator sends to the victim’s workplace, can have devasting consequences on the victim’s employment.[4] Forty-eight states, D.C. and two U.S. territories currently have laws prohibiting the distribution or production of NCP, a rapid increase from only three states in 2013.[5] However, there are no explicit state or federal statutes that protect victims of NCP from employment discrimination, retaliation, demotion, or termination.[6] Fortunately, for NCP victims whose perpetrators are or were intimate partners, a remedy exists in states that recognize domestic violence victims as a protected class in the state’s workplace anti-discrimination laws because NCP can qualify as domestic violence.[7] Disseminating NCP causes harm to the victim, such as psychological trauma, threats of sexual assault from strangers online, loss of employment, loss of educational opportunities, and loss of intimate and family relationships.[8] Thus, when a perpetrator of NCP is or was an intimate partner of the victim, anti-discrimination protections for domestic violence victim status should by consequence apply to the NCP victim.
Domestic violence is generally defined as “acts or threats of violence or a pattern of threats or abuse committed by a person such as a spouse, intimate partner, a person with whom the victim shares a child in common, or family or household member.”[9] Domestic violence statutes may also be defined as “[any crime] against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.”[10] Under these definitions, dissemination of nonconsensual pornography falls within the definition of domestic violence when (1) an intimate partner of the victim is the perpetrator and (2) NCP is recognized as a crime or violent act against the victim.
Most domestic violence statutes define ‘intimate partner’ broadly or list numerous ways the victim can be related to the perpetrator, so the first element is easily satisfied.[11] NCP should be considered a crime or violent act because it is a crime in most states and causes real harm for the victim.[12] Disseminating NCP is a nonconsensual act that, whether intentionally or recklessly, humiliates the victim, can destroy victims’ relationships, educational and employment opportunities, and cause severe emotional distress.[13] Some state domestic violence definitions encompass psychological abuse, indicating that abuse does not need to be physical.[14] The effects of NCP on victims’ lives suggest that it is a form of violence and abuse, with some scholars arguing it rises to the level of a sexual offense.[15] Consider this quote from a victim:
“I had a boyfriend for six months. We lived together. We decided to document ourselves in an intimate scene on his cell phone. When we separated, he decided to disseminate it to his friends. . . Everyone I know received it . . . Since it happened . . . I haven’t been able to come back to life, to routine life. I don’t think this is an invasion of privacy. I think I was raped in front of the whole country. I feel this is viral rape, online rape.”[16]
Disseminating NCP results in real harm that’s comparable to domestic violence, thus it should qualify as domestic violence when the perpetrator is an intimate partner of the victim.
Consequentially, states with workplace anti-discrimination laws in place for victims of domestic violence are useful for NCP victims who experience discrimination in their workplace or termination based on their status as an NCP victim.[17] If an intimate partner tries to sabotage the victim’s career or humiliate them in the workplace by distributing sexual images of them, the employer may not retaliate, demote, or terminate the employee without discriminating against them as a DV victim, thereby violating the state fair employment law.[18]
There are many strengths to this proposal. First, it builds on pre-existing state laws. Many states consider NCP to be a criminal offense along with pre-existing state-level anti-discrimination protections for domestic violence victims.[19] These laws work in tandem and do not require burdensome legislative action to protect NCP victims from the fallout of the domestic violence perpetrated against them. Second, applying domestic violence workplace protections to NCP victims provides a remedy for victims who experience damage to their professional reputation and have their employment affected or even terminated because the NCP is public.[20] Criminal ‘revenge porn’ laws only provide redress against the perpetrator. Domestic violence workplace protections allow an NCP victim to have redress against a third party’s discriminatory action. An NCP victim may not want to involve law enforcement or prosecutors out of fear they will be judged, doubted, or not taken seriously.[21] Finally, workplace anti-discrimination protections may be easier to prove in court than criminal ‘revenge porn’ laws because anti-discrimination suits require a lower burden of proof than criminal suits (i.e., “preponderance of the evidence” versus “beyond reasonable doubt”).[22]
The limitation of this proposal is that it offers a very narrow solution and cannot protect all victims of NCP, in particular those whose images are distributed by a stranger.[23] Whether an NCP victim can be successful in categorizing their abuse as domestic violence in their state will depend on how the state defines domestic violence itself. For example, in states which include a ‘pattern of behavior’ in their definition of domestic violence, a perpetrator who disseminates a sexually explicit image of the victim only once may not constitute domestic violence under the state’s definition.[24] Many states prohibit employer retaliation for employees who take leave for domestic violence related reasons, but only five states and U.S. territories (D.C., Delaware, Hawaii, New York, and Puerto Rico) have included domestic violence victim status broadly as a protected class in their fair employment laws.[25]
However, existing law that provides a remedy for a victim of NCP terminated or discriminated against in their workplace should be utilized to its fullest extent. If states are serious about protecting victims of nonconsensual pornography, as evidenced by the rapid enactment of criminal ‘revenge porn’ laws across the country, states should quickly expand their employment protections to explicitly include NCP victims and domestic violence victims alike.[26]
[1] I will use ‘nonconsensual pornography’ over the term ‘revenge porn’ because some perpetrators are not motivated by revenge. Frequently Asked Questions, Cyber Civ. Rts. Initiative,https://www.cybercivilrights.org/faqs/ (last visited Jan. 29, 2021) (stating that in one study nearly 80% of perpetrators “are not motivated by revenge or by any personal feelings toward the victim”).
[2] See id. (defining nonconsensual pornography).
[3] See Mary Anne Franks, “Revenge Porn” Reform: A View from the Front Lines, 69 Fla. L. Rev. 1251, 1258-59, 1263-64 (2017) (NCP can play a role in intimate partner violence, with abusers using the threat of disclosure to keep their partners from leaving and reporting the abuse to law enforcement).
[4] See generally Annie Seifullah, Revenge Porn Took My Career. The Law Couldn’t Get It Back, Jezebel(July 18, 2018), https://jezebel.com/revenge-porn-took-my-career-the-law-couldnt-get-it-bac-1827572768 (victim’s account of losing her job due to nonconsensual pornography that was sent to her workplace by a former partner); Melissa Crowe, ‘Revenge Porn’ Can Devastate Victims — and Their Employers, Pudget Sound Business Journal (Aug. 5, 2016), https://www.bizjournals.com/seattle/blog/techflash/2016/08/revenge-porn-can-devastate-victims-and-their.html; Georgia Diebelius, Woman Sacked After Ex Posted Revenge Porn to Her Boss, Metro (Jan. 17, 2017 10:47 am), https://metro.co.uk/2017/01/17/woman-sacked-after-ex-posted-revenge-porn-to-her-boss-6385895/; Annmarie Chiarini, I was a Victim of Revenge Porn. I Don’t Want Anyone Else to Face This, The Guardian (Nov. 19, 2013), https://www.theguardian.com/commentisfree/2013/nov/19/revenge-porn-victim-maryland-law-change; see also Franks, supra note 3, at 1259.
[5] See Frequently Asked Questions, supra note 1 (“[b]efore 2013, only three U.S. states had criminal laws directly applicable to nonconsensual pornography”); Nonconsensual Pornography Laws, Cyber Civ. Rts. Initiative, https://cybercivilrights.org/nonconsensual-pornagraphy-laws/ (last visited Jan. 29, 2021) (showing forty-eight states, D.C., and two U.S. territories now have laws against nonconsensual pornography).
[6] Note that some NCP victims after being discharged have been successful in suing their former employer for gender discrimination. See Miranda v. South County Cent. Sch. Dist., 61 F. Supp. 3d 17 (E.D.N.Y. 2020) (denying defendant’s motion to dismiss for federal and state gender discrimination claims against the defendant school district).
[8] See Franks, supra note 3, at 1263-64, 1285.
[9] E.g. D.C. Code § 4-551 (2013).
[10] E.g. Colo. Rev. Stat. Ann. § 18-6-800.3 (West 2007).
[11] See generally Domestic Violence/Domestic Abuse Definitions and Relationships, Nat’l Conf. of State Legis. (June 6, 2019) https://www.ncsl.org/research/human-services/domestic-violence-domestic-abuse-definitions-and-relationships.aspx; see People v. Disher, 224 P.3d 254, 256 (Colo. 2010) (construing intimate partner as a broad definition that “includes, but is not limited to, sexual intimacy”).
[12] Nonconsensual Pornography Laws, supra note 5 (showing forty-eight states, D.C., and two U.S. territories now have laws against nonconsensual pornography); see Franks, supra note 3, at 1258.
[13] See Franks, supra note 3, at 1258-63 (detailing the harm and scope of NCP).
[14] See e.g. Haw. Rev. Stat. Ann. § § 586-1 (LEXIS through 2021 Legis. Sess.); W.V. Code § 48-27-202 (LEXIS through 85th Legis. Sess.).
[15] See generally Roni Rosenberg & Hadar Dancig-Rosenberg, Reconceptualizing Revenge Porn, 63 Ariz. L. Rev. 199, 199-204 (2021) (grounds for categorizing the dissemination of nonconsensual pornography as a sex offense).
[16] Rosenberg, supra note 15, at 200.
[17] See Cal. Lab. Code § 230(c) (West 2021) (prohibiting “an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, and/or stalking . . . . for taking time off from work to obtain or attempt to obtain relief to help ensure his or her health, safety, or welfare, or that of his or her child or children”); Delaware (Del. Code Ann. tit. 19, § 711(h) (LEXIS through 83 Del. Laws, c. 267) (“[i]t shall be an unlawful employment practice for an employer to: (1) Fail or refuse to hire or to discharge any individual . . . with respect to compensation, terms, conditions, or privileges of employment because the individual was the victim of domestic violence”); District of Columbia (D.C. Code § 2-1402.11 (LEXIS through D.C. Law 24-44) (it is “an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived . . . status as a victim or family member of a victim of domestic violence”); New York(N.Y. Exec. Law § 296(1)(a) (LEXIS through 2022 released Chapters 1-12) (prohibiting an employer from refusing to “hire or employ or to bar or to discharge from employment” or to otherwise discriminate on the basis of domestic violence victim status).
[18] See e.g. New York (Civ. Rights § 296(1)(a) (prohibiting an employer from refusing to “hire or employ or to bar or to discharge from employment” or to otherwise discriminate on the basis of domestic violence victim status).
[19] See Nonconsensual Pornography Laws, supra note 5 (showing forty-eight states, D.C., and two U.S. territories now have laws against nonconsensual pornography); Domestic Violence and the Workplace, supra note 7(summary of states and local laws concerning domestic violence and the workplace).
[20] See Seifullah, supra note 4 (victim’s account of losing her job due to nonconsensual pornography and describing the lack of legal remedies available to get her job back).
[21] See Franks, supra note 3, at 1286, 1303, 1305-1306 (different ways NCP makes victims feel vulnerable when dealing with law enforcement).
[22] Compare People v. Barber, 992 N.Y.S.2d 159, 159 (N.Y. Crim. Ct. 2014) (affirming motion to dismiss nonconsensual pornography case), with Matter of Castillo v Schriro, 15 N.Y.S.3d 645, 654-56, 665 (N.Y. Sup. Ct. 2015) (reinstating employment with pay after employer terminated employee based on her status as a domestic violence victim).
[23] See Franks, supra note 3, at 1263 (results from a 2013 study by the Cyber Civil Rights Initiative found that over half of the NCP involved a former intimate partner, insinuating that a good portion of NCP perpetrators would not be an intimate partner).
[24] Compare Colo. Rev. Stat. § 18-6-800.3 (defining domestic violence as any crime against an intimate partner “when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship”) (does not include in the definition any pattern of behavior is required); with D.C. Code § 4-551 (defining domestic violence as “acts or threats of violence or a pattern of threats or abuse committed by a person such as a spouse, intimate partner, a person with whom the victim shares a child in common, or family or household member”).
[25] District of Columbia (D.C. Code § 2-1402.11 (LEXIS through D.C. Law 24-44) (it is “an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived . . . status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking”); Delaware (Del. Code Ann. tit. 19, § 711(h) (LEXIS through 83 Del. Laws, c. 267) (“[i]t shall be an unlawful employment practice for an employer to: (1) Fail or refuse to hire or to discharge any individual . . . with respect to compensation, terms, conditions, or privileges of employment because the individual was the victim of domestic violence”); Hawaii (Haw. Rev. Stat. Ann. § 378-2(1)(A) (LEXIS through 2021 Legis. Sess.); New York(N.Y. Exec. Law § 296(1)(a) (LEXIS through 2022 released Chapters 1-12) (prohibiting an employer from refusing to “hire or employ or to bar or to discharge from employment” or to otherwise discriminate on the basis of domestic violence victim status); Puerto Rico (P.R. Laws Ann. tit. 29, § 146 (LEXIS through 2012 Legis. Sess.); see also Domestic Violence and the Workplace, supra note 7 (summary of states and local laws concerning domestic violence and the workplace).
[26] See Frequently Asked Questions, supra note 1 (“[b]efore 2013, only three U.S. states had criminal laws directly applicable to nonconsensual pornography”); Nonconsensual Pornography Laws, supra note 5 (showing forty-eight states, D.C., and two U.S. territories now have laws against nonconsensual pornography).