Digital Dangers: New Jersey’s Revenge Porn Laws

By Marissa Kindberg, Staff Writer

As cellphones and computers have made it easier for couples to connect- especially during the COVID-19 pandemic- concerns continue to rise over the non-consensual sharing of sexually explicit photos over the internet. In 2015, Hollie Toups famously sued Texxxan.com, a so called “revenge porn” website that allowed users to submit sexually explicit photos of persons without their knowledge. After being informed that her intimate photos were shared online without her consent, Toups went to the police as well as several lawyers in Texas only to be told that there were no laws that prohibited the distribution of revenge porn. Unfortunately, in 2015 only 17 states had laws criminalizing the nonconsensual sharing of sexually explicit photos. Today, however, almost all states have laws criminalizing this behavior.

In 2004, New Jersey became the first state in the nation to criminalize revenge porn. N.J.S.A. 2C:14-9 prohibits the nonconsensual photography, filming, videotaping, recording or otherwise reproducing images of another person “whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact”. Additionally, N.J.S.A. 2C:14-9(c) further prohibits the nonconsensual disclosure of any photography, filming, videotaping, recording or otherwise reproducing “another person’s undergarment-clad intimate parts”. New Jersey’s statute is particularly broad as it prohibits not only the nonconsensual sharing of nude photos, but also the nonconsensual sharing of partially nude photos.

The law defines the word “disclose” to mean “sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise, offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not”. Additionally, the statute defines the term “intimate parts” means “sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person”. Accordingly, New Jersey’s revenge porn law is often regarded as the toughest in the nation as it criminalizes such a wide range of behavior in an effort to protect victims..

Penalties

The New Jersey revenge porn law makes it a fourth-degree crime to knowingly film, videotape, record, or otherwise reproduce nonconsensual sexually explicit images. The penalty for a violation of this statute is thus punishable by up to 18 months of imprisonment or a fine of up to $10,000 or both.

Additionally, the statute makes it a crime of the third degree to disclose any nonconsensual sexually explicit images. A crime of the third degree is punishable by imprisonment of up to five years, a fine of up to $15,000, or both.

Affirmative Defenses

Is there actually a defense? Yes. N.J.S.A. 2C:14-9 provides that it is an affirmative defense to establish that the actor posted the photo or otherwise provided prior notice of his or her intent to engage in the conduct or that the actor acted with a lawful purpose. Additionally, a defendant may be able to show that the actor possessed consent to film or distribute the images.

Civil Liability

In addition to facing criminal penalties for the nonconsensual filming and posting of sexually explicit images, a violator can be held civilly liable. N.J.S.A. 2A:58D-1 provides a civil claim for victims of revenge porn- allowing them to sue the actor for invasion of privacy. The civil statute permits the court to award the victim actual damages, punitive damages, attorney’s fees, and other forms of equitable relief as the court deems appropriate. Additionally, the violator does not need to be criminally convicted in order for the victim to institute a civil action.

New Jersey provides extensive protection to victims of revenge porn. Not only does New Jersey criminalize the distribution of revenge porn, but it also allows for the victim to bring a private cause of action against the perpetrator. It is important for victims to know that New Jersey criminalizes a wide range of behaviors relating to revenge porn and perpetrators may face significant penalties including jail time.

Marissa Kindberg is a third year law student at Rutgers University-Newark, where she is a member of the Rutgers Italian American Law Student Organization and is the Research and Technologies editor for the Women’s Rights Law Reporter.