In Latest Violence Against Women Act Reauthorization, Congress Created a Remedy for Victims of Revenge Porn

Over the last several years, it has become increasingly common to send or request nude or intimate images in the context of personal relationships. However, it is important that all parties to sexting and similar activities be consenting adults. (Sexual photos of minors under 18 are considered child pornography under state and federal law, much to the surprise of many teenagers.) If a former romantic partner, hacker, or other individual distributes such photos without consent, or threatens to do so, the subject of the photo is considered a victim of “sextortion” or “revenge porn.” Different states have adopted different approaches to these phenomena, and past proposed legislation in Massachusetts on this subject has not passed, leaving revenge porn victims with few options in this Commonwealth.

However, in reauthorizing the Violence Against Women Act in 2022, Congress included a little-known provision making revenge porn a federal issue as of its effective date of October 1, 2022. Under this section, a person who is identifiably shown in an intimate visual depiction may bring suit in federal court against someone who distributed or published the depiction knowing that the plaintiff did not consent to the distribution, or recklessly disregarding whether the plaintiff consented. For jurisdictional reasons, the distribution has to have some connection to interstate commerce or instrumentalities of interstate commerce (which typically includes the Internet, social media, cell phones, and mail, among other things). Importantly, the statute explicitly states that consent to making an image is not the same thing as consent to distributing the image – so a sext sent consensually to a spouse or partner can still be subject to protection if it was then sent to others without consent, and an intimate image sent to one person cannot be passed on to someone else without consent. There is an exception for commercial pornographic content, unless that content was produced by force, fraud, or coercion.

A victim of revenge porn under this statute may sue in federal court for either actual damages or liquidated damages of $150,000, plus attorney’s fees and costs. A plaintiff may also seek a temporary restraining order or preliminary injunction to require a defendant to stop distributing intimate images. And, crucially, the statute permits a court to grant relief while maintaining the plaintiff’s anonymity with a pseudonym. Authorizing victims to sue under a pseudonym is critical to enforcement of the law because it would chill victims from making use of this statute if they had to provide their names and describe in public court filings what intimate images had been used or disseminated without their consent.

Since the statute is so new, very few cases applying this statute have been decided. A district court in Tennessee granted a restraining order and preliminary injunction where the defendant threatened to distribute the plaintiff’s intimate photos “like AOL discs back in the day” and then did mail at least 10 photos to the plaintiff’s friends, family, and employers. The court disregarded the defendant’s objection that the plaintiff had sent the photos to the defendant’s wife and so had no expectation of privacy, because the relevant question is whether the defendant distributed intimate images without the plaintiff’s consent. The only case in Westlaw to reach a final decision, a dispute between estranged spouses in Utah, does not provide much insight into the scope of the law because the defendant did not respond to the plaintiff’s filings and had judgment for $150,000 entered against him.

This statute provides strong remedies on behalf of revenge porn victims, including statutory damages and attorney’s fees. It fills a key gap in the protections of many states, including Massachusetts, that have been slow to adopt laws to address these issues. However, there is an important limitation – it does not cover attempts or threats to disseminate intimate images, only actual dissemination. It thus addresses revenge porn but not necessarily sextortion. Although criminal laws against blackmail or extortion may cover such conduct, a similar civil remedy would be an important tool to protect against broader misuse of intimate images.

If you or someone you know has had intimate images distributed without consent and needs legal assistance, fill out our online intake form or call us at (617) 742-6020 to be connected with a defense lawyer.