The Modern-Day Scarlet Letter: Erasing the Scar of Non-Consensual Pornography Through Affirmative Consent

Authors

Jennifer Esposito

Abstract

Most have heard the phrase “revenge pornography” via the various websites that have infiltrated the internet for the sole purpose of posting this type of content. Not only do these websites display photos and videos of the victim in their most intimate moments, but they also often include names, addresses, phone numbers, and other identifying information. While many people know what revenge pornography is, they are completely unaware of the devastating impact that revenge pornography has on victims, the majority of which are women. As a result of revenge pornography, victims often suffer from mental illnesses (depression, anxiety, suicidal ideation, post-traumatic stress disorder, etc.), loss of job, isolation, and loss of friends and family. As it stands, about 50% of people have sent an intimate photo or video, and of that percentage, 10% have been threatened with distribution of the image. This is no small statistic, but it is one that could be lowered with proper criminalization. Currently, several states have revenge pornography laws, however, none have proven to be all that effective due to a requirement by most to show “intent.” This makes it nearly impossible for victims to achieve any sort of justice. Civil remedies are few and far between due to victims choosing not to bring suit to maintain anonymity, the difficulty of proving their case, and most defendants being judgment-proof. Copyright law has shown to be ineffective—most takedown notices are ignored, and even when they are not, nothing is ever truly deleted from the internet. As such, the most effective remedy would be to enact a federal criminal law. This would enable enforcement across all fifty states, something that is important when dealing with cybercrimes. Additionally, the threat of jail time and a criminal record could prove to be much more of a deterrent than any civil remedies, particularly when the defendant is judgment-proof. An effective federal law would have no intent requisite, have the potential of jail time, require offenders to register as a sex offender, and classify the offense as a felony.

Recommended Citation

Jennifer Esposito, The Modern-Day Scarlet Letter: Erasing the Scar of Non-Consensual Pornography Through Affirmative Consent, 27 J. L. & Pol'y 141 (2018).
Available at: https://brooklynworks.brooklaw.edu/jlp/vol27/iss1/4