Have you or your loved one been charged with revenge porn? This criminal offense attracts grievous penalties upon conviction. This is why you have to build a robust defense strategy to fight your charges.

In this article, we will discuss all you need to know about the criminal offense of revenge porn. We will highlight the elements the prosecutor must prove for you to be convicted and discuss how you can fight revenge porn charges. We will also discuss the penalties for revenge porn. Lastly, we will highlight other criminal offenses related to revenge porn.

We invite you to contact us at California Criminal Lawyer Group for a free consultation if you are facing charges for revenge porn. Our primary goal is to help defendants in Anaheim facing criminal charges win their cases. We can help you build a robust defense strategy so that you can receive the most favorable outcome.

What is Revenge Porn?

Penal Code 647j(4) criminalizes revenge porn. According to Penal Code 647j(4), it is a criminal offense to post online sexually explicit videos or images of another person without his/her consent.

Revenge porn is a domestic violence offense. In most cases, the alleged victims include estranged intimate partners.

You will be charged with this offense if there is evidence showing you posted sexually explicit videos or images of someone else without obtaining his/her permission. For instance, you may have posted a nude image of your ex-spouse online. Or, you may have recorded someone else doing a sexual act and posted the video on a pornographic site without his/her permission. In most cases, the alleged victims usually claim to suffer emotional distress when these images or As explained earlier in this article, California criminal law categorizes revenge porn as videos that are circulated online.

Revenge Porn as a Domestic Violence Offense

Domestic violence offense. The alleged victim might be your former or current spouse, co-parent, cohabitant, intimate, or dating partner. California domestic violence laws criminalize harming or threatening to harm such individuals.

Besides revenge porn, other examples of California domestic violence offenses include:

  • Corporal injury to an inhabitant or spouse
  • Trespass Domestic battery
  • Aggravated trespass
  • Posting harmful information on the internet
  • Damaging a telephone line
  • Criminal threats
  • Stalking

The California Law Enforcement Department takes domestic violence offenses quite seriously. Most of them attract lengthy imprisonment terms or huge fines upon conviction.

What the Prosecution Must Prove

To get a conviction of any criminal offense in California, the prosecutor must prove certain elements. This is because the burden of proof in California criminal cases is on the prosecution.

Additionally, the standard of proof in California criminal cases is beyond a reasonable doubt. The prosecutor must prove each element of the crime to the standard of beyond reasonable doubt. Most prosecutors in Anaheim fail to reach this high standard when proving each element. In such cases, the court dismisses the defendants' criminal charges.

In a California revenge porn criminal lawsuit, the prosecutor must prove each of the  elements listed below beyond a reasonable doubt:

  • You had a sexually explicit video or image of another person
  • You intentionally distributed the image or video
  • You obtained no consent from the victim to distribute the image or video
  • You knew that distributing the image or video would make the victim undergo emotional distress
  • The alleged victim suffered emotional distress

Below, we discuss each of these elements comprehensively:

You had a Sexually Explicit Video or Image of Another Person

The prosecutor must prove you had another person's sexually explicit video or image. The prosecutor must illustrate that this video or image was within your control or in your possession. For instance, the prosecutor might tell the judge or jury that you had saved the video or image to your phone device or camera. You will be acquitted if you can prove the video or image was not in your possession or within your control.

Additionally, the prosecutor must show how the video or image was sexually explicit. In most cases, this is usually obvious. California Penal Code 647j4 defines what a sexually explicit video or image is. According to PC 647j4, a sexually explicit video or image is any graphic that displays an 'intimate body part' or depicts a person engaging in a sexual act.

PC 647j4 further states what an 'intimate body part' is. It lists the genitals, anus, and breasts in cases involving women. Penal Code 647j4 also lists sexual acts, including masturbation, sexual intercourse, sodomy, sexual penetration, and oral copulation.

Furthermore, the prosecutor must demonstrate to the judge or jury that the sexually explicit video or image belonged to an 'identifiable person.' This is relatively easy. All the prosecutor needs to do is to identify the victim and state that any person could have identified them after seeing the video or image.

You Intentionally Distributed the Image or Video

The prosecution must prove you intentionally distributed the photo or video. For instance, he/she might tell the judge or jury you posted the image or video to an online platform or porn site or sent it to another person via email or text message. Or, he/she may allege you physically delivered the video or image to someone else.

You will be acquitted if you show that the photo or video was distributed accidentally or someone else distributed it. Note that in cases where another person distributed the image or video, the prosecutor might allege that you instructed this person to do so. As a defense strategy, you can refute this allegation.

You Obtained No Consent from the Victim to Distribute the Image or Video

The prosecutor must prove you obtained no consent from the victim to distribute the image or video. To do this, the prosecutor will illustrate to the judge or jury that although you possessed the image or video, there was a mutual understanding between you and the victim that it would remain private.

This element is relatively easy for the prosecutor to prove if the alleged victim was your intimate partner. In such cases, all the prosecutor needs to do is to convince the judge or jury you had an intimate relationship with the victim.

You Knew that Distributing the Image or Video would Make the Victim Undergo Emotional Distress

The prosecutor must prove you knew distributing the image or video would make the victim suffer emotional distress. He/she must show the judge/jury that you intended to hurt the victim emotionally.

To prove this element, the prosecutor might tell the judge or jury that the relationship between you and the victim was strained. He/she will illustrate you posted the sexually explicit video or image to backstab or get revenge against the victim.

The Alleged Victim Suffered Emotional Distress

The prosecutor must prove the victim suffered emotional distress after you distributed the video or image. It is easy for the prosecutor to prove this element.

All the prosecutor needs to do to prove this element is to have the victim testify before the judge or jury. Then, the victim will explain to the court how he/she suffered emotionally when the image or video was distributed.

The Punishments for the Criminal Offense of Revenge Porn

In California, the criminal offense of revenge porn is categorized as a misdemeanor. Its penalty is an imprisonment term of up to six months. Or, the judge may order you to pay a fine not exceeding $1,000.

However, certain aggravating circumstances in your case can make the judge enhance your imprisonment term by an additional six months or increase your fine to up to $2,000. Some examples of these aggravating circumstances include:

  • The victim was a minor
  • You have one or more previous revenge porn convictions

Will you Lose your Gun Rights upon Conviction?

You will not lose your gun rights upon being convicted of revenge porn. Therefore, you will still be able to legally possess or own a firearm even after receiving a revenge porn conviction.

In California, being convicted of certain offenses (especially felonies) can make you lose your legal right to own or possess a firearm. Fortunately, revenge porn is not one of them.

Does a Conviction for Revenge Porn have Negative Immigration Consequences?

A conviction for certain criminal offenses in California may have adverse immigration consequences. These offenses are customarily referred to as 'crimes involving moral turpitude.' A non-citizen convicted of these offenses may get deported or become marked as 'inadmissible.'

However, the California Law Enforcement Department does not consider revenge porn as a crime involving moral turpitude. Therefore, a conviction for revenge porn has no negative immigration consequences.

Civil Lawsuits for Revenge Porn

The alleged victim may sue you in California civil court for compensation. In such cases, the main argument of the alleged victim would be that he/she underwent emotional distress after the distribution of the video or image and that he/she deserves compensation for this emotional distress. Particularly, the victim would be claiming compensation for:

  • Feelings of hurt and shame
  • Undergoing stress or depression
  • Loss of reputation
  • Loss of employment or business income

California's standard of proof in civil lawsuits is on a balance of probabilities. The burden of proof is on the plaintiff, i.e., the alleged victim.

It is relatively easy for the plaintiff to reach the required standard of proof in a revenge porn civil lawsuit. This is especially if you have already been convicted in a criminal lawsuit. This is why hiring an experienced criminal defense attorney who can help you build a robust defense strategy to fight your charges is essential. If you win your criminal lawsuit, it will be challenging for the plaintiff to prove liability in the civil suit.

If the court finds you liable in a civil lawsuit for revenge porn, you will be ordered to pay compensation to the alleged victim. It is either the jury or the judge who will decide the amount of money payable as compensation. This amount of money will be commensurate with the level and extent of emotional distress the alleged victim suffered.

Defending a Revenge Porn Criminal Lawsuit

You can beat revenge porn criminal charges with a good defense strategy. Some of the popular legal defenses in California to revenge porn criminal charges include:

  • Unlawful search
  • You did not distribute the image or video intentionally
  • Consent
  • No intent to cause emotional distress

Here is a brief analysis of each of these defenses:

Unlawful Search

The U.S. Constitution guarantees the right to privacy. Before a law enforcement officer searches your belongings or devices, he/she must obtain a search warrant. Any search conducted without a search warrant is unlawful.

If the police found the sexually explicit video or image in an unlawful search, your attorney can petition the judge to have it expunged from the court record as evidence. The prosecutor will be forced to drop your charges if the video or image is expunged from the court record as evidence. This is because the video or image was crucial in proving you are guilty.

You Did Not Distribute the Image or Video Intentionally

Remember, one of the elements that the prosecutor must prove for you to be convicted for revenge porn is you intentionally distributed the photo or video. You will be acquitted if you can demonstrate to the judge or jury that the image or video was distributed accidentally.

For instance, you can tell the court the video or image was accidentally leaked to someone else. Or, you can assert that the image or video distribution occurred due to a cyber security breach.

Consent

You can argue that you obtained consent from the alleged victim. This consent must be explicit and not obtained under duress or by force or threats.

If you opt for this defense, the court will require you to show how you obtained consent. Your criminal defense attorney can help you do this.

No Intent to Cause Emotional Distress

Remember, to be convicted of revenge porn; the prosecutor must prove you knew distributing the image or video would cause emotional distress to the victim. You will be acquitted if you were unaware that your actions would have hurt the victim.

For example, you can argue that you distributed the video or image as a prank and thought the victim would find it funny. If you opt to use this defense, it is vital to show that you were not estranged from the victim. This way, you can prove you had no ill will or malice towards the victim.

Expunging a Revenge Porn Criminal Conviction

Besides imprisonment and fines, a criminal conviction carries negative long-term consequences. You will obtain a criminal record if you've been convicted of any offense. This criminal record will hinder you from numerous opportunities, including jobs, scholarships, university admissions, and even good housing.

Fortunately, it is possible to expunge a conviction for revenge porn. This way, the criminal conviction will not appear when anyone searches your criminal record.

If you would like to expunge a criminal conviction for revenge porn, it would be best to consult a defense attorney. Your attorney will guide you in this process and help you expunge the conviction.

Note that you can only expunge a criminal conviction for revenge porn after you've received your punishment. Therefore, you can only apply for expungement once you've served your imprisonment sentence, paid the required fine, or completed probation (whichever is the case).

Revenge Porn and Related Criminal Offenses

The following crimes are considered related to the criminal offense of revenge porn:

  • Peeking while loitering
  • Video voyeurism
  • Invasion of privacy
  • Trespassing
  • Posting harmful information on the internet
  • Damaging a telephone line

Besides revenge porn, depending on the nature of your case, you can find yourself facing additional or alternative charges for these offenses. Below, we discuss each of these criminal offenses briefly:

Peeking while Loitering

Penal Code 647i is California's primary law on this criminal offense. According to Penal Code 647i, peering into a window or door of an inhabited structure while loitering on private property is unlawful.

You may face charges for this offense, in addition to or as an alternative to revenge porn, if you obtained the sexually explicit video or image by peeking into a window or door of someone else's house, store, or shop. Just like revenge porn, this criminal offense is deemed to be a misdemeanor. Its penalty is an imprisonment term of up to six months.  Or, the judge may order you to pay a fine of up to $1,000.

Invasion of Privacy

Penal Code 647j is California’s primary law on the invasion of privacy. Particularly, Penal Code 647j criminalizes the following acts:

  • Using devices such as binoculars or telescopes to invade someone else’s privacy
  • Secretly recording or photographing someone else’s body for sexual gratification or sexual arousal

You may face charges for this offense, in addition to or as an alternative to revenge porn, if you were involved in any of these above-listed acts while obtaining the sexually explicit video or image. This offense is categorized as a misdemeanor. Its penalty is a  jail term of up to six months or the judge may order you to pay a fine of up to $1,000.

Video Voyeurism

Video voyeurism is a federal offense. According to the United States Code 1801, it is an offense to intentionally and knowingly capture the image of someone else’s private body part without his/her consent and in a place where the victim has a reasonable expectation of privacy.

Unlike revenge porn, to be convicted of this offense, the prosecutor does not need to prove you distributed the image. You will be convicted of this offense as long as the prosecutor shows that you captured the image without the victim's consent, where the victim expected some privacy.

This offense is classified as a misdemeanor. Its penalty is an imprisonment term of not more than one year or the judge may order you to pay a fine not exceeding $5,000.

Trespassing

Penal Code 602 is California's primary law on trespassing. According to this law, it is unlawful to remain on or enter someone else's property without obtaining consent.

You will face criminal charges for trespassing, alongside or as an alternative to revenge porn, if you attempted to capture the image or record the video while on the victim's property without his/her permission. This offense is deemed to be a misdemeanor. Its penalty is a jail term not exceeding six months. You may sometimes be ordered to pay a fine of up to $1,000.

Posting Harmful Information on the Internet

This offense is also referred to as ‘indirect electronic harassment.’ You will be charged with this offense if you post or email harmful information about another person to make other people harass him/her.

Besides revenge porn, you may face additional or alternative charges for this offense if you post harmful information about your former or current spouse or intimate partner as a form of revenge. This offense is deemed to be a misdemeanor. Its penalty is a county jail term of up to six months. Sometimes, the judge may order you to pay a fine of up to $1,000.

Damaging a Telephone Line

If you prevent someone else from making a phone call, you may be charged with the crime of damaging a telephone line. This is according to California Penal Code 591. Particularly, California Penal Code 591 criminalizes damaging or cutting phone equipment.

This offense can be charged as a misdemeanor or a felony. As a misdemeanor, it attracts a jail term not exceeding one year. You may sometimes be ordered to pay a fine not exceeding $1,000. If it is charged as a felony, its penalties may include a prison term not exceeding three years. In some instances, the judge may impose a fine of up to $10,000.

Find an Anaheim Criminal Defense Attorney Near Me

If you or your loved one has been charged with revenge porn in Anaheim, we invite you to contact us at California Criminal Lawyer Group for a free consultation. We will help you build a robust defense strategy.

Call us today at 714-766-0965 to discuss your case confidentially with an attorney. We are dedicated to ensuring you receive the best outcome possible in your case.