NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A571B
SPONSOR: Braunstein (MS)
TITLE OF BILL:
An act to amend the penal law, in relation to establishing the crime of
non-consensual dissemination of sexually explicit images
PURPOSE OR GENERAL IDEA OF BILL:
Relates to establishing the crime of non-consensual 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
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 infor-
mation to be redacted and to proceed with the case under a pseudonym.
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.
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.8214/5.5949 - Amend and recommit to codes.
This act shall take effect on the first of November next succeeding the
date on which it shall have become a law.
STATE OF NEW YORK
2015-2016 Regular Sessions
January 7, 2015
Introduced by M. of A. BRAUNSTEIN, BRINDISI, PAULIN, SCHIMEL, McDONOUGH,
DUPREY, MONTESANO, SIMOTAS, MORELLE, BARRETT, BENEDETTO, BLANKENBUSH,
TENNEY, RAIA, OTIS, FINCH, QUART, SALADINO, ORTIZ, SKOUFIS, BRABENEC,
FRIEND -- Multi-Sponsored by -- M. of A. CROUCH, ENGLEBRIGHT, GALEF,
MARKEY, McKEVITT, PALMESANO, RODRIGUEZ, SKARTADOS -- read once and
referred to the Committee on Codes -- recommitted to the Committee on
Codes in accordance with Assembly Rule 3, sec. 2 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, 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
16 1. For the purposes of this section:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 571--B 2
1 (a) "Intimate parts" means the naked genitals, pubic area, anus, or
2 female post-pubescent nipple of the person.
3 (b) "Sexual contact" means but is not limited to, masturbation, geni-
4 tal, anal, or oral sex, sexual penetration with objects, or the transfer
5 or transmission of semen upon any part of the depicted person's body.
6 2. This section shall not apply to:
7 (a) lawful and common practices of law enforcement, criminal report-
8 ing, or legal proceedings, or disseminations made in the reporting of
9 unlawful activity; or
10 (b) situations involving voluntary exposure in public or commercial
11 settings, or disseminations made for a legitimate public purpose.
12 Non-consensual dissemination of sexually explicit images is a class A
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
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. 571--B 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
22 § 2. This act shall take effect on the first of November next succeed-
23 ing the date on which it shall have become a law.