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A01641 Summary:

BILL NOA01641A
 
SAME ASSAME AS S02725-A
 
SPONSORBraunstein
 
COSPNSRBrindisi, Paulin, McDonough, Montesano, Simotas, Morelle, Barrett, Benedetto, Blankenbush, Raia, Otis, Finch, Quart, Ortiz, Skoufis, Brabenec, Friend, Stirpe, McDonald, Schimminger, Murray, Giglio, Titone, Abbate, Hyndman, Seawright, Mosley
 
MLTSPNSRCrouch, Englebright, Galef, Lupinacci, McKevitt, Palmesano, Rodriguez, Skartados
 
Add 250.70 & 250.75, Pen L
 
Establishes the crime of non-consensual dissemination of sexually explicit images as a class A misdemeanor.
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A01641 Actions:

BILL NOA01641A
 
01/12/2017referred to codes
03/17/2017amend and recommit to codes
03/17/2017print number 1641a
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A01641 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1641A
 
SPONSOR: Braunstein (MS)
  TITLE OF BILL: An act to amend the penal law, in relation to estab- lishing the crime of non-consensual dissemination of sexually explicit images   PURPOSE OR GENERAL IDEA OF BILL: Relates to establishing the crime of nonconsensual dissemination of sexually explicit images.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 adds a new section, 250.70 to the New York Penal Law, which provides that a person is guilty of non-consensual dissemination of sexually explicit images when he or she knowingly discloses a photo- graph, film, videotape, or recording of another person whose intimate parts are exposed or who is engaged in an act of sexual contact, when a reasonable person would have known that the person depicted would not have consented to such dissemination. Additionally, the dissemination must be without such person's consent and under circumstances in which the person has a reasonable expectation of privacy, meaning that the person has consented to the capture or possession of an image within the context of a private or confidential relationship. 250.70.1 provides definitions of "intimate parts" and "sexual contact." 250.70.2 provides exceptions for lawful and common practices of law enforcement, disseminations made for a legitimate public purpose, and situations involving voluntary exposure in public or commercial settings, and disseminations made in the reporting of unlawful activity. 250.70.3 Non-consensual dissemination of sexually explicit images is a class A misdemeanor. 250.75 is also added to the penal law to allow for a civil cause of action for the non-consensual dissemination of sexually explicit images. The statute of limitations to bring suit is five years. Nothing in the section requires that a criminal charge be brought or a criminal conviction obtained as a condition of bringing the civil cause of action. In addition to injunctive relief, the plaintiff is entitled to actual damages, punitive damages, and reasonable court costs and attor- ney fees. The actual damages are the higher of either (1) the calculated actual damages at the rate of $1,000 per day for each day the images were viewable up to thirty days, or each time a threat to distribute was made, or an image fraudulently obtained, or (2) $10,000. There are several affirmative defenses to the civil suit included in this legis- lation. Additionally, 250.75.4 allows the plaintiff's identifying information to be redacted and to proceed with the case under a pseudo- nym. The court must inform the plaintiff of the option to proceed under a pseudonym at the earliest possible point and shall maintain records in a manner that protects the plaintiff's confidentiality.   JUSTIFICATION: In an era of increased text messaging, social networking, and emailing, people in intimate relationships sometimes share pictures with each other, some of which may be sexually explicit in nature. However, recip- ients of these images do not always keep the images within the confines of an intimate relationship, and have the ability to widely disseminate the photos on the Internet. The non-consensual dissemination of such sexually explicit images, also known as "revenge porn" is often provided to Internet websites, and features photos sometimes accompanied by disparaging descriptions and identifying details, such as where the victims live and work, as well as links to their social network pages. Posting these photographs online is damaging to the reputations of the victims. These photographs have extensive negative effects, including destroying future intimate relationships and educational and employment opportunities. Victims are routinely threatened with sexual assault, stalked, harassed, or fired from jobs. New York's current distribution of unlawful surveillance law only governs photographs taken without the subject's consent. This bill would govern photographs that are captured consensually, as part of an inti- mate, private relationship, which are later disclosed by an individual to the public without the consent of the individual photographed. Criminalization is preferable to civil suits by victims because civil suits do not deter those who upload or disclose new images after a civil suit has ended. Furthermore, a lengthy trial is emotionally exhausting and prohibitively expensive. Moreover, the websites that distribute nonconsensual pornography are given broad immunity for civil liability under federal law through the Communications Decency Act. Therefore, criminalizing dissemination of these photos may prevent websites from benefiting from the harmful images. However, because New York relies on common law to pursue a civil case, including the torts of harassment and intentional infliction of emotional distress, a civil suit is often difficult to pursue and win. As such, this legislation adds a civil cause of action for non-consensu- al dissemination of sexually explicit images that would provide recourse to victims. The civil cause of action is designed to work in conjunction with the criminal law, and does not require that a criminal conviction or charge be obtained in order to proceed. The victim will have a choice whether to pursue a criminal or civil case, or both. Additionally, victims of non-consensual pornography have five years to bring a suit for the nonconsensual dissemination of sexually explicit images. The criminal portion of the bill is also narrowly drawn so as not to infringe on First Amendment rights, as there is no constitutional protection afforded to individuals who consume or distribute sexually explicit images of individuals without their consent. The bill also creates exceptions for lawful activity.   PRIOR LEGISLATIVE HISTORY: 2013-2014: A.8214/S.5949 - Amend and recommit to Codes. 2015-2016: A.571-B/S.4450-B - Amend and recommit to Codes.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
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A01641 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1641--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 12, 2017
                                       ___________
 
        Introduced by M. of A. BRAUNSTEIN, BRINDISI, PAULIN, McDONOUGH, MONTESA-
          NO,  SIMOTAS,  MORELLE,  BARRETT,  BENEDETTO, BLANKENBUSH, RAIA, OTIS,
          FINCH, QUART, ORTIZ,  SKOUFIS,  BRABENEC,  FRIEND,  STIRPE,  McDONALD,
          SCHIMMINGER,  MURRAY,  GIGLIO,  TITONE,  ABBATE, HYNDMAN, SEAWRIGHT --
          Multi-Sponsored by -- M.  of A. CROUCH, ENGLEBRIGHT, GALEF, LUPINACCI,
          McKEVITT, PALMESANO, RODRIGUEZ, SKARTADOS -- read once and referred to
          the Committee on Codes -- committee discharged, bill amended,  ordered
          reprinted as amended and recommitted to said committee
 
        AN  ACT to amend the penal law, in relation to establishing the crime of
          non-consensual dissemination of sexually explicit images
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. The penal law is amended by adding two new sections 250.70
     2  and 250.75 to read as follows:
     3  § 250.70 Non-consensual dissemination of sexually explicit images.
     4    A person is guilty of non-consensual dissemination of sexually explic-
     5  it images when he or she knowingly and without consent of  the  depicted
     6  person  disseminates  a  photograph,  film, videotape, recording, or any
     7  other reproduction of the image of such depicted person  whose  intimate
     8  parts  are exposed or who is engaged in an act of sexual contact, when a
     9  reasonable person would have known that the person  depicted  would  not
    10  have  consented  to such dissemination, and under circumstances in which
    11  the depicted person has a reasonable expectation of privacy.   A  person
    12  who  has  consented  to the capture or possession of an image within the
    13  context of a private or confidential relationship retains  a  reasonable
    14  expectation   of  privacy  with  regard  to  dissemination  beyond  that
    15  relationship.
    16    1. For the purposes of this section:
    17    (a) "Intimate parts" means the naked genitals, pubic  area,  anus,  or
    18  female post-pubescent nipple of the person.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01700-02-7

        A. 1641--A                          2
 
     1    (b)  "Sexual contact" means but is not limited to, masturbation, geni-
     2  tal, anal, or oral sex, sexual penetration with objects, or the transfer
     3  or transmission of semen upon any part of the depicted person's body.
     4    2. This section shall not apply to:
     5    (a)  lawful  and common practices of law enforcement, criminal report-
     6  ing, or legal proceedings, or disseminations made in  the  reporting  of
     7  unlawful activity;
     8    (b)  situations  involving  voluntary exposure in public or commercial
     9  settings, or disseminations made for a legitimate public purpose; or
    10    (c) providers of an interactive computer service,  as  defined  in  47
    11  U.S.C. § 230(f), for images provided by another person.
    12    Non-consensual  dissemination of sexually explicit images is a class A
    13  misdemeanor.
    14  § 250.75 Civil cause of action for non-consensual dissemination of sexu-
    15             ally explicit images.
    16    1. A civil cause of action lies against  a  person  who  disseminates,
    17  threatens  to  disseminate  an image of another person identifiable from
    18  the image itself or information displayed in connection with  the  image
    19  and  whose  intimate  parts  are exposed or is engaged in sexual conduct
    20  without that other person's consent, if the actor:
    21    (a) obtained the image  or  images  under  circumstances  in  which  a
    22  reasonable  person would know or understand that the image was to remain
    23  private, including but not limited to images shared within  the  context
    24  of  a  confidential relationship that were then disseminated beyond such
    25  relationship; or
    26    (b) knowingly obtained the image or images under  false  pretenses  or
    27  without  authorization  or  by  exceeding authorized access to property,
    28  accounts, messages, files, devices, or resources.
    29    2. The following affirmative defense shall apply if:
    30    (a) The distributed material  was  created  or  distributed  under  an
    31  agreement by the person appearing in the material for its public use and
    32  distribution; or
    33    (b)  The  distributed material constitutes a matter of public concern,
    34  lawful and common practices  of  law  enforcement,  criminal  reporting,
    35  legal  proceedings,  medical  treatment,  or  scientific  or educational
    36  activities; or
    37    (c) The distributed material  was  photographed,  filmed,  videotaped,
    38  recorded,  or  otherwise  reproduced in a public place and under circum-
    39  stances in which the person depicted had no  reasonable  expectation  of
    40  privacy.
    41    3. In addition to other relief available at law, including an order by
    42  the  court to destroy any image obtained or disseminated in violation of
    43  this section, and to preserve discoverable information, and  preliminary
    44  and permanent injunctive relief, the actor shall be liable to the plain-
    45  tiff for:
    46    (a)  Actual  damages,  but  not  less  than  liquidated damages, to be
    47  computed at the rate of one thousand dollars per day for  each  day  the
    48  image  or  images  were viewable or each instance a threat to distribute
    49  was made or an image fraudulently obtained up to  thirty  days,  or  ten
    50  thousand dollars, whichever is higher; and
    51    (b) Punitive damages; and
    52    (c) Reasonable court costs and attorneys' fees.
    53    4.  In  an action brought under this section, all identifying informa-
    54  tion about the plaintiff  may  be  redacted  from  pleadings  and  court
    55  filings  and  the plaintiff may proceed under pseudonym; the court shall
    56  inform the plaintiff of the option to proceed  under  pseudonym  at  the

        A. 1641--A                          3
 
     1  earliest  possible point and shall maintain the records in a manner that
     2  protects the plaintiff's confidentiality.
     3    5.  The following definitions shall apply:  (a) "Personal information"
     4  includes, but is not limited to, name or any part  thereof,  address  or
     5  any  part  thereof,  age,  names  of  family  members,  marital  status,
     6  relationship to defendant, race or ethnic background, employer,  school,
     7  or  URLs, social media account usernames, and screenshots related to the
     8  cause of action;
     9    (b) "Actual damages" includes, but is not limited to, pain and suffer-
    10  ing, emotional distress, economic damages, and lost earnings.
    11    6. A cause of action brought under this section may be brought no more
    12  than five years after the last dissemination or incident.
    13    7. The actor's claim that the depicted person is a public figure shall
    14  not be sufficient to establish the affirmative defense that distribution
    15  constitutes a matter of public concern.
    16    8. Nothing in this section shall be construed to require that a crimi-
    17  nal charge be brought or a criminal conviction be obtained as  a  condi-
    18  tion  of  bringing a civil cause of action or receiving a civil judgment
    19  pursuant to this section or be construed to  require  that  any  of  the
    20  rules  governing  a  criminal proceeding be applicable to any such civil
    21  action.
    22    9. This section shall not apply to providers of an interactive comput-
    23  er service, as defined in 47 U.S.C. § 230(f),  for  images  provided  by
    24  another person.
    25    § 2. This act shall take effect on the first of November next succeed-
    26  ing the date on which it shall have become a law.
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