Samantha Ahearn
The nonconsensual dissemination of intimate images (NDII), commonly referred to as “revenge porn” or nonconsensual pornography, involves the distribution of nude or nearly nude images of a person without the consent of the person pictured.[1] The person depicted may or may not have consented to the initial creation of the image, but in both scenarios the poster did not consent to the distribution. Massachusetts is one of two states that have not passed legislation to protect NDII survivors.
While NDII is not a new phenomenon, advancements in technology have allowed it to become widespread. Online posters may distribute the image on websites that specifically host NDII or through social media, blogs, emails, or texts. As of 2019, one in twelve Americans reported being a survivor of NDII at least once in their lifetime.[2] The number of victimizations has likely increased since the COVID-19 pandemic, which shifted everything online, including abuse.[3]
Survivors of NDII where the survivor consented to taking the photo may know the perpetrator who distributed their intimate images without their consent—such as an intimate partner, friend, family member or acquaintance—or the survivor may not know the perpetrator, such as in cases of hacking. A perpetrator may post for revenge, control, profit, notoriety, entertainment, humor, compliment, or no reason at all. NDII where the survivor consents to taking the photo is often employed as a coercive and isolating tactic in domestic violence relationships.
Regardless of who or why a person posts the image, the consequences to survivors of distributing the image are devasting. Irreparable harm to the survivor begins the moment the perpetrator shares the image. Viewers can immediately download, save, share, or re-post the image, making it impossible to remove the image from circulation. The permanency of the private image creates an ongoing, inescapable violation for the survivor. Because perpetrators often accompany the images with identifying information, viewers frequently harass, stalk, and threaten survivors with sexual assault. Additionally, the possibility of an intimate photo being one click away creates devastating consequences to a survivor’s personal and professional life, such as jeopardizing relationships with friends and family or making it difficult to obtain employment. Fallout from NDII can even drive some victims to commit suicide. For example, in 2019, a Massachusetts high-school student committed suicide after someone posted a nude photo of her on Facebook.[4]
In 2004, New Jersey responded to the devastation caused by NDII by becoming the first state to enact a statute criminalizing the practice.[5] As of 2022, forty-eight states have passed NDII statutes. Massachusetts is one of the two states that have not adopted legislation, despite Governor Charlie Baker’s three attempts and the overwhelming support from survivors, sexual-assault and domestic-violence advocacy groups, and even the Massachusetts Appeals Court.[6]
In 2017, Governor Baker first proposed a NDII Bill to the state legislature.[7] The Massachusetts legislature, however, declined to vote on it.[8] In 2019, Governor Baker resubmitted the Bill.[9] Again, the Massachusetts legislature declined to vote on it.[10] Although state legislative leaders acknowledged that NDII is a “grievous crime,” they remained reluctant to pass the legislation, arguing that it was unnecessary in light of the state’s existing voyeurism and criminal harassment laws.[11] This reasoning, however, was uninformed because the state’s existing statutes are inapplicable to many NDII cases.
First, Massachusetts’s voyeurism law is inapplicable to most NDII cases because the law criminalizes the act of disseminating intimate images of a person where someone took the image without the depicted person’s knowledge or consent.[12] Thus, the law does not protect survivors in the scenario where a perpetrator distributes the intimate images taken by an originally consenting survivor. As a result, the voyeurism statute completely misses the entire category and associated harms typical of so many NDII cases.
Second, Massachusetts’s criminal harassment law is inapplicable to most NDII survivors because the state requires the behavior to be “willful and malicious” and constitute a “pattern of conduct or series of events.”[13] The statute’s intent requirement precludes survivors from redress where the perpetrator distributed the image without malicious intent, and instead for reasons such as for profit, notoriety, entertainment, humor, or no reason at all. Additionally, the Massachusetts Supreme Judicial Court interpreted a “pattern of conduct or series of events” to require three or more incidents of harassment.[14] This requirement precludes survivors where the poster only posted or shared the image once, despite the ability of third parties to re-post and distribute the image.
In 2021, Governor Baker resubmitted the Bill in a third attempt to pass the legislation.[15] Instead of passing the Bill, the House created and unanimously passed its own Bill—with similar language to Governor Baker’s—that would guarantee the state’s existing criminal harassment law would apply to NDII survivors.[16] This Bill reconciles the current law’s loopholes. The Bill criminalizes the “intent to harm, harass, intimidate, threaten, coerce or cause emotional distress, or does so with reckless disregard for the depicted person’s lack of consent to the distribution.”[17] This more inclusive language would close the current criminal harassment’s “willful and malicious” loophole. Furthermore, the Bill only requires one incident, closing the three or more incidences loophole.[18] It is also worth noting that the Bill provides a list of exceptions, thus addressing any First Amendment counterarguments.[19]
Despite the House’s effort, the Senate unfortunately did not vote on the House’s Bill before adjourning its final formal session. The Senate’s decision to not pass the House’s Bill, let alone to not even vote on it, is a complete letdown to Massachusetts NDII survivors. Their failure to act perpetuates NDII victimization and prolongs any hope for criminal redress.
Since 2004, forty-eight states, not including Massachusetts, have acknowledged the harm of NDII by passing criminal legislation.[20] Massachusetts has a clear gap in its protections for NDII survivors when the survivor initially took the photo with consent. Existing Massachusetts criminal remedies are currently insufficient for most NDII cases. The lack of an NDII-specific criminal statute leaves many vulnerable to victimization, especially in world that has recently gone substantially more online. The Massachusetts legislature needs to provide NDII survivors with sufficient protection and can do so by passing the House’s Bill amending the current criminal harassment statute’s loopholes.
[1] See Frequently Asked Questions: Terminology, Cyber Civ. Rts. Initiative, https://cybercivilrights.org/faqs/#terminology [https://perma.cc/X69D-X7UP] (defining NDII).
[2] See Yanet Ruvalcaba & Asia A. Eaton, Nonconsensual Pornography Among U.S. Adults: A Sexual Scripts Framework on Victimization, Perpetration, and Health Correlates for Men and Women, 10 Psych. Violence 75 (2019) (examining the rates of victimization of NDII).
[3] See Jessica M. Goldstein, ‘Revenge Porn’ Was Already Commonplace. The Pandemic Has Made Things Even Worse, Wash. Post (Oct. 29, 2020), https://www.washingtonpost.com/lifestyle/style/revenge-porn-nonconsensual-porn/2020/10/28/603b88f4-dbf1-11ea-b205-ff838e15a9a6_story.html [https://perma.cc/PD69-L728] (stressing COVID-19 climate exacerbates technology abuse, especially NDII).
[4] State House News Service, Massachusetts State Rep Calls for Criminalizing ‘Revenge Porn’, MASSLIVE (Mar. 24, 2019), https://www.masslive.com/politics/2015/06/massachusetts_state_rep_calls_for_criminalizing_revenge_porn.html [https://perma.cc/CK57-Q8EF] (stressing consequences of Massachusetts’s lack of NDII legislation).
[5] See N.J. Stat. § 2C:14-9 (2016) (criminalizing NDII in New Jersey).
[6] See, e.g., Matt Stout, In Less Than a Decade, Nearly Every State Has Outlawed ‘Revenge Porn.’ So Why Hasn’t Massachusetts?, Bos. Globe (Feb. 6, 2022), https://www.bostonglobe.com/2022/02/06/metro/less-than-decade-nearly-every-state-has-outlawed-revenge-porn-so-why-hasnt-massachusetts/ [https://perma.cc/8SS9-CLRQ] (outlining Governor Baker’s speech calling on state legislature to close loophole); Our View: Taking Revenge Porn Seriously, Gloucester Times (Jan. 28, 2022), https://www.gloucestertimes.com/opinion/our-view-taking-revenge-porn-seriously/article_9a10eee4-7fb4-11ec-90a4-83d2316ecf0b.html [https://perma.cc/6HXL-73M6] (criticizing state legislature for not taking NDII victimization seriously); Commonwealth v. Salmons, 132 N.E.3d 1031, 1038 (Mass. App. Ct. 2019) (suggesting state legislature should address NDII).
[7] See H. 3655, 2018 Leg., 190th Sess. (Mass. 2018) (outlining proposed Massachusetts NDII Bill).
[8] See id.
[9] See H. 76, 2019 Leg., 191st Sess. (Mass. 2019).
[10] See id.
[11] See Stout, supra note 6 (highlighting state legislature’s hesitation to pass NDII legislation and quoting their reasons why).
[12] See Mass. Gen. Law ch. 272, § 105 (2012).
[13] See Mass. Gen. Law ch. 265, § 43A (2010).
[14] Commonwealth v. Paton, 825 N.E.2d 1005, 1013 (2005).
[15] See H. 4498, 2022 Leg., 192nd Sess. (Mass. 2022).
[16] See id.; see also Chris Lisinski, House Passes Harassment Bill to Address Revenge Porn, MASSLIVE (May 26, 2022), https://www.masslive.com/politics/2022/05/house-passes-harassment-bill-to-address-revenge-porn.html [https://perma.cc/XWA3-CY5R] (explaining House’s decision to update existing law to help NDII victims).
[17] H. 4498, 2022 Leg., 192nd Sess. (Mass. 2022).
[18] Id.
[19] Id.; Lee Rowland, VICTORY! Federal Judge Deep-Sixes Arizona’s Ridiculously Overbroad ‘Nude Photo’ Law, ACLU (July 10, 2015), https://www.aclu.org/blog/free-speech/internet-speech/victory-federal-judge-deep-sixes-arizonas-ridiculously-overbroad [https://perma.cc/4LZ2-MZXH] (arguing NDII laws with broad “intent to harm” requirement violate First Amendment).
[20] See Frequently Asked Questions: Current State Laws, Cyber Civ. Rts. Initiative, https://cybercivilrights.org/faqs/#current-state-laws [https://perma.cc/EMN7-Q4BX] (noting almost all states and territories have NDII laws).