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Nude photo of congresswoman could test legal limits of ‘revenge porn’ laws

Nude photo of congresswoman could test legal limits of ‘revenge porn’ laws
[Photo: Zach Gibson/Getty Images]

After the conservative site RedState published a redacted topless photo of Representative Katie Hill, a California Democrat, and alleged she was in a relationship with her legislative director and a campaign aide, she reported the matter to police, according to a statement published by the New York Times.

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“Intimate photos of me and another individual were published by Republican operatives on the internet without my consent,” she said in the statement. “I have notified Capitol Hill police, who are investigating the situation and potential legal violations of those who posted and distributed the photos, and therefore will have no further comment on the digital materials.”

RedState claimed to have additional intimate photos of Hill that it did not publish. It’s against House rules for representatives to have sexual relationships with their congressional staff, although those rules don’t extend to campaign workers. Hill denied a relationship with the House aide but declined to comment on her relationship with the campaign staffer.

Some supporters say Hill is the latest victim of “revenge porn,” but the exact details of the situation may affect whether a California law that criminalizes the distribution of nonconsensual pornography actually applies to the case. One important issue is whether California law has jurisdiction, which could hinge on where and how the photo was distributed, says Southern California defense lawyer John D. Rogers.

But assuming the state’s laws do apply, the situation might still be complex. RedState ran a redacted version of the apparently topless photo, and the law requires that an “intimate body part” be shown in the image.

“According to California law, revenge porn requires the dissemination of an intimate body part, so it’s unclear, and it’s an interesting issue, if it’s redacted and disseminated whether or not it depicts an intimate body part,” says Rogers.

It’s unclear whether RedState redacted the photo or received it in redacted form from whoever leaked it. The original leaker could potentially be covered by the law even if RedState is not, says Rogers. Since the law is relatively new, he says, it’s also unclear in general how courts would treat situations where people share a photo that’s been sent to them in violation of the law but aren’t the initial sources. The law refers to situations where someone distributes photos “under circumstances in which the persons agree or understand that the image shall remain private.”

The law also requires that the subject of nonconsensual porn suffers “serious emotional distress,” which is something a defense lawyer could challenge if anyone was prosecuted for distributing it.

While cases involving nonconsensual pornography date back decades, with many cases involving blackmail, many states have recently passed laws against the practice after incidents where people’s intimate partners shared intimate photos as revenge after a fight or breakup. In those cases, disseminating the photos might not violate previously existing laws.

The exact nuances of the laws vary from state to state, and some have been challenged as unconstitutional under the First Amendment, another issue that could potentially stymie prosecution related to images of Hill.

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