“The best revenge is massive success.” So says that great American philosopher, or at least crooner of love songs, Frank Sinatra. But, when a love affair or marriage ends, sometimes the aftermath gets nasty. Perhaps the ultimate in nasty is so-called “revenge porn.”
Usually, but not always, revenge porn occurs when a man posts images of his undressed ex. Their love affair derailed, and he’s going to shame her. The pictures are from a happier time, when she consented to his photographing her.
Currently, 38 states and the District of Columbia make revenge porn a crime, according to the Cyber Civil Rights Initiative. Revenge laws criminalize posting or otherwise distributing sexually explicit pictures or videos of another without that person’s consent to do so. Unfortunately, in Missouri, posting WITHOUT consent, of compromising pictures made WITH consent, is not clearly a crime.
If pictures are made with no consent, then that is a crime in Missouri, regardless of whether the pictures are distributed. That’s Missouri’s invasion of privacy law, first passed in 1995. The year before, in Buffalo, a creep, who doesn’t deserve the recognition of having his name used, secretly videotaped 83 women using his tanning salon. Some wanted no tan lines. Media coverage proliferated, including in the St. Louis Post-Dispatch, the Associated Press, the Springfield News-Leader and the Buffalo Reflex, which might be called the Buffalo Gag Reflex under the circumstances.
Then-Attorney General Jay Nixon hit upon a partial answer: The creep had violated Missouri’s child-abuse law by videotaping 10 minors. Some news reports said the creep could be sentenced up to 70 years. But the creep, who was the mayor’s son and a former Buffalo alderman, entered into a plea agreement and got a slap on the wrist — two months in jail, three years of probation.
What about the women who weren’t minors? Missouri’s criminal law gave them no more cover than they had in a tanning bed. No statute specifically covered the repulsive, non-consensual situation, and an ex post facto law — a law purporting to apply to activity that occurred before the law passed — is illegal under the U.S. and Missouri constitutions.
Legislators need to be prescient: They must pass laws against activity they don’t want in their bailiwick BEFORE the activity occurs. Perhaps they need crystal balls in some circumstances, but not when 38 states already have recognized the problem and taken action.
Another falling-between-the-cracks happened in Missouri with a tragic cyberbullying case that sparked nationwide outrage. Apparently 13-year-old Megan Meier and another girl in her St. Charles neighborhood had a falling out. So, the other girl’s 49-year-old mother posed online for six weeks as 16-year-old “Josh Evans,” her My- Space creation. At first, Josh courted Megan but then turned on her. The night before Megan’s death, Josh sent Megan a message telling her “the world would be a better place without you.” On Oct. 16, 2006, Megan Meier hanged herself. The following day, she died.
When the identity of the cruel prankster became known, calls for her prosecution in Missouri failed — not from lack of will but from lack of legislation. Missouri law didn’t criminalize cyberbullying, so prosecutors had no legal authority to go forward. They couldn’t prosecute activity Missouri law didn’t prohibit, and laws couldn’t be expanded backward to ensnare Megan’s tormentor.
For snaring a snarling cyberbully, no law was squarely on point, and criminal law demands precision. A person must clearly be put on notice that an activity is illegal. The law must be on the books at the time, and the law must be clear. Vague laws that don’t give adequate notice are “void for vagueness” — the legal kiss of death for legislation.
In prosecutors’ full-court press to find her guilty of something, the cyberbullying mother landed in a California federal court. A federal prosecutor asserted jurisdiction over her because MySpace servers were located in Los Angeles. A jury found her guilty of violating the federal Computer Fraud and Abuse Act because her fraudulent “Josh Evans” postings violated MySpace’s terms of service. The New York Times reported on Nov. 26, 2008: “Los Angeles — A federal jury here issued what legal experts said was the country’s first cyberbullying verdict ..., convicting a Missouri woman of three misdemeanor charges of computer fraud for her involvement in creating a phony account on MySpace to trick a teenager, who later committed suicide.”
Although the prosecutor wanted the cyberbully sentenced to the maximum three years in jail and a $300,000 fine, in July 2009 Judge George Wu threw out her conviction, explaining: “You could prosecute pretty much anyone who violated terms of service.”
In the meantime, Missouri lawmakers had reacted to the Megan Meier tragedy. In June 2008, Missouri’s governor signed a cyberbullying law. It tweaked Missouri’s existing law on harassment, expanding the language requiring that the communication be written or done via telephone. The new language in Missouri Revised Statutes § 565.090 made clear that harassment via electronic devices was also illegal. Further, if perpetrated “by a person 21 years of age or older against a person 17 years of age or younger,” the crime moved from a class A misdemeanor to a class D felony.
According to the National Conference of State Legislatures, as of November 2012, all 50 states had cyberstalking and cyber-harassment laws.
All states need revenge porn laws, too. Missouri should be proactive by passing a revenge porn law before another Buffalo creep or cyberbullying mother situation arises, where activity that should be a crime happens before Missouri law makes it a crime.
Here’s a sentiment perhaps expressed first by French novelist Pierre Choderlos de Laclo in 1782: “Revenge is a dish best served cold.” Maybe so, but revenge porn needs to be taken off the menu. Missouri legislators should criminalize revenge porn now.
Sandy Davidson, Ph.D., J.D., teaches communications law at the Missouri School of Journalism. She is a Curators’ Distinguished Teaching Professor and the attorney for the Columbia Missourian.