In this Article we make the case for the direct criminalization of nonconsensual pornography. Current civil law remedies, including copyright remedies, are an ineffective deterrent to revenge porn. If they were, we would likely not be witnessing the rise in reports of victimization as well as the proliferation in revenge porn websites. According to attorney Mitchell Matorin, who has represented revenge porn victims, “In the real world, civil lawsuits are no remedy at all.” Among the reasons that civil litigation is ineffective is the fact that even a successful suit cannot stop the spread of an image already disclosed, and most disclosers know they are unlikely ever to be sued. Most victims do not have either the time or money to bring claims, and litigation may make little sense even for those who can afford to sue if perpetrators have few assets. While perpetrators may have little fear of civil litigation or copyright claims, the threat of criminal penalties is a different matter. Since criminal convictions in most cases stay on one’s record forever, they are much less likely to be ignored. While some existing criminal laws can be mobilized against revenge porn, on the whole, existing criminal laws simply do not effectively address the issue.
Criminalizing nonconsensual pornography is also appropriate and necessary to convey the proper level of social condemnation for this behavior. Given that a response from the criminal justice system is essential, we hope to help lawmakers interested in drafting such laws. We offer our suggestions for drafting revenge porn legislation that would comport with the First Amendment and Due Process concerns.
