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Revenge Porn Charges in California
- Penal Code §647(j)(4) -
Revenge Porn Charges - PC 647(j)(4)
The technological developments in mobile photograph have made capturing high-definition photos and videos easier than ever. Within seconds, people can whip out their phones and start recording. While the digital age has made it easier to memorialize important milestones in one’s life, the technology can sometimes be used for the wrong reasons.
Over the last decade, there has been a dramatic increase in the nonconsensual distribution of intimate or nude images. The increase has led state and federal legislatures to pass laws banning what has come to be known as “revenge porn”.
California was one of the first states in the United States to pass legislation criminalizing revenge porn. In 2014, California enacted Penal Code §647(j)(4) criminalizing the distribution of intimate images or videos of another person without their consent.
The following information is intended to provide a general understanding of California revenge porn laws and the penalties for violating Penal Code §647(j)(4). It is always recommended that someone charged with violating PC 647 contact an experienced revenge porn lawyer at JPLaw, P.C. as soon as possible.
CRIMINAL DEFENSE
1. What is revenge porn under penal code section 647(j)(4)?
While Penal Code §647(j)(4) is sometimes referred to as California’s “revenge porn” statute, this is somewhat misleading because a person doesn’t actually have to be motivated by revenge to violate the law. The law encompasses much more than what is ordinarily understood as revenge porn.
California law makes it a crime to distribute sexually explicit images or videos without the consent of the person being depicted. It doesn’t matter that the person depicted originally consented to the taking of the photo or video, distributing such content can land you behind bars.
2. What are the elements of revenge porn?
Before someone can be found guilty of a crime, the person must violate every essential component of the criminal charge. The essential components of a crime are called elements.
The prosecutor – either the district attorney or city attorney in Orange County – is responsible for proving every element of the crime beyond a reasonable doubt. If even a single juror has reasonable doubt as to any one of the elements, you cannot be convicted of the crime.
To be found guilty of revenge porn for violating Penal Code §647(j)(4), the prosecutor must prove the following elements beyond a reasonable doubt:
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The person intentionally distributes the image of the intimate body part or parts of another identifiable person,
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The persons agreed or understood that the image would remain private,
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The person who distributed the image knew or should have known that distributing the image would cause serious emotional distress to the person depicted, AND
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The person depicted suffers serious emotional distress.
Posting an image to a social media website can be considered revenge porn.
Intimate Body Part - An “intimate body part” is defined as any portion of the genitals, the anus and, in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.
Identifiable Person - Although the law says that the person depicted must be “identifiable”, it does not require that the identity of the person depicted actually be established. A person is considered “identifiable” within the meaning of Penal Code §647(j)(4) if they are capable of being identified, or capable of being recognized.
Intentional Distribution - Distribution is broadly defined under California’s revenge porn law. It includes giving, delivering, exhibiting, and transferring possession of the image or video.
Probably the most common form of revenge porn is when a disgruntled person shares the nude photos of their former partner, usually to embarrass or humiliate them. Whether the disgruntled ex sends the image to a single person or posts it online for millions to see, that person has committed a crime in California.
3. What are the exceptions to PC 647(j)(4)?
There are several exceptions to the revenge porn law in California. These exceptions permit someone to share the intimate image or video of another without the possibility of punishment, even if the person has committed all the elements of the crime.
The exceptions to penal code §647(j)(4) are as follows:
1. The distribution is made in the course of reporting unlawful activity.
When someone reports a crime to law enforcement, officers usually ask that the person provide them with any information or evidence the person may have. Thus, if someone wants to report an incident of revenge porn by a third-party, officers may ask that the person send them the image or video to store as evidence.
In complying with the officer’s request, the person may have violated the law themselves. This exception, however, would prohibit prosecuting that person for sharing the image or video with law enforcement.
2. The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.
Similar to the prior exception, a person cannot be charged for revenge porn by complying with a subpoena or other court order. If the person in the example above refuses to share the image or video with law enforcement upon reporting the crime, the prosecutor may have to subpoena the person to produce the evidence.
A subpoena is an order from a court that requires the person to appear or provide something to the court. The person would have to comply with the order, otherwise they could be held in contempt or charged with violating a court order.
If the person produces the evidence in order to comply with the subpoena or court order, then they could not be prosecuted for revenge porn.
3. The distribution is made in the course of a lawful public proceeding.
4. The distribution is related to a matter of public concern or public interest.
This exception relates to a person’s right to freedom of speech. Freedom of speech has greater protection when it involves a matter of public interest.
The exception is providing leeway for the instances when an image may be shared for a newsworthy reason. However, an image or video is not a matter of public concern or public interest solely because the depicted individual is a public figure.
4. What are the penalties for revenge porn?
Violating Penal Code §647(j)(4) is a misdemeanor criminal offense in California. A misdemeanor is a mid-level crime. It is not as serious as a felony, but it is more serious than an infraction.
In any event, charges for violating penal code §647(j)(4) should never be taken lightly. Violating the law carries varying degrees of penalties depending on the circumstances.
Penalties for Revenge Porn –
The maximum penalty for a first-time violation of Penal Code §647(j)(4) is:
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Up to 6-months in county jail;
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A fine of up to $1,000; OR
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Both that fine and imprisonment.
Probation for Violating PC647(j)(4) –
In California, revenge porn is a serious crime that could land you behind bars without the right criminal lawyer defending you.
A defendant convicted of revenge porn for violating penal code section 647(j)(4) is eligible for probation. Probation is a form of clemency, though. A judge is not required to grant a defendant probation.
A defendant convicted of revenge porn for violating penal code section 647(j)(4) is eligible for probation. Probation is a form of clemency, though. A judge is not required to grant a defendant probation.
Probation allows the defendant to remain in the community under conditional supervision. Probation can be either formal or informal. A probationer on formal probation is supervised by the probation department. A probationer placed on informal probation is supervised by the Court.
A defendant granted probation is expected to comply with all the terms of his probation. Failure to comply with the terms of probation can lead to revocation of the defendant’s probation.
A defendant granted probation for violating penal code section 647(j)(4) can expect to see the following terms:
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Up do 12-months of probation (either formal or informal)
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Community service or community labor
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A fines and fees
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An order to stay away from the victim
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A possible class
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An order to pay restitution
5. What are some common defenses to revenge porn charges?
There are many defenses a good criminal defense lawyer can use to defend someone charged with indecent exposure in violation of PC 314.
Accidental Distribution –
Accidental or unintentional distribution of an intimate image of another is not a crime. California’s revenge porn law requires the defendant intentionally distribute an intimate image of another person.
For example, a person could not be convicted of penal code section 647(j)(4) for accidentally posting the nude photo of another person.
Unidentifiable Victim –
Another common defense to revenge porn charges is that the person depicted in the image or video is not identifiable. This defense is most effective when the image is dark or low quality making it difficult to actually see the person depicted.
Even when the person depicted is visible in the image or video, this may be a viable defense if the person has no distinguishable features like piercings, tattoos, or scars.
No Evidence of Serious Emotional Distress –
There are two requirements regarding serious emotional distress. One of the requirements is that the person who distributed the image reasonable should have known that sharing the intimate image would cause the person depicted serious emotional distress.
The second requirement is that the person depicted actually suffer serious emotional distress. If the person depicted in the photo does not suffer serious emotional distress, then you may have a legal defense to revenge porn.
Every situation is different though. If you or someone you love has been charged with revenge porn for allegedly violating penal code section 647(j)(4), it is best to contact an experienced and knowledgeable criminal defense lawyer.
Contact An Orange County Criminal Defense Lawyer
If you or someone you love has been charged with revenge porn for violating penal code section 647(j)(4), contact a local Orange County revenge porn lawyer at JPLaw, P.C. to schedule your FREE consultation.
John-Patrick Mullen-Lujan is a trusted Orange County criminal defense lawyer that prides himself on his ability to communicate with clients as he helps navigate them through the complex criminal justice system.
Attorney Mullen-Lujan was named one of the Best Criminal Defense Lawyers in Orange and Newport Beach. Hire an attorney you can trust and who can provide the zealous advocacy you need.
JPLaw, P.C.
Orange County Law Office
Old Town Orange Office
410 N Clark St.
Orange, CA 92868
Phone: (949) 991-7057
Email: JPLAW22@outlook.com