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Arizona Enacts ‘Revenge Porn’ Law

Posted by Shawn Hamp | Mar 13, 2016 | 0 Comments

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New Law Makes It A Felony To Send Nude Pictures Of Another With ‘Intent To Harm'

Arizona governor, Doug Ducey signed a new emergency law on March 11th making it a Felony to send and distribute ‘Revenge Porn'.

The law amends the previous statute A.R.S. 13-1425.  It makes it a felony to send images of another person in the state of nudity or other sexual act with the intent to harm, harass, intimidate, threaten or coerce.

The person in the image must have had a reasonable expectation of privacy that the images were private.

 

Arizona's Previous ‘Revenge Porn' Law Ruled Unconstitutional

Arizona enacted a similar law in 2014 that was struck down as unconstitutional by a Federal Court Judge. 

The judge ruled that the first law was too broad and vague and would criminalize legitimate artist and photographers.

The previous law made it illegal to disclose images of another person without their consent of disclosure.

The new law requires the prosecution to also prove “Intent to Harm” and that the person in the pictures had an expectation of privacy.

The changes should prevent any legal challenges to the new law.

Highlights Of The New ‘Revenge Porn' Law.

  • Its a class 5 Felony to commit ‘Revenge Porn' but a Class 4 Felony if the image is sent via electronic means.
  • A Class 4 Felony is normally punishable up to 3.75 years in prison.
  • It is a Class 1 Misdemeanor to simply threaten to send or disclose ‘Revenge Porn' even if they do not send any images to anyone.
  • The law amends A.R.S. 13-1425.  Any previous prosecutions are only valid if the allegations comport with the new law.
  • “Disclose By Electronic Means” includes sending or posting images via e-mail, mobile device, tablet, electronic device or website.

Arizona has similar statutes prohibiting “using electronic communication” to harass or threaten individuals (13-2916).

‘Revenge Porn' Can Be Act of ‘Domestic Violence'

Under Arizona's existing domestic violence law (13-3601) committing an act of ‘Revenge Porn' would also make any offense an act of ‘domestic violence'.

Under Arizona Law, a Domestic Violence Victim includes a spouse, former spouse, roommate, or with a partner that was a previous or current romantic or sexual relationship.  A domestic violence designation could essentially apply to almost every ‘Revenge Porn' case.

13-1425.  Unlawful distribution of images depicting states of nudity or specific sexual activities; classification; definitions

A.  It is unlawful FOR A PERSON to intentionally disclose AN IMAGE of another person WHO IS IDENTIFIABLE FROM THE IMAGE ITSELF OR FROM INFORMATION DISPLAYED IN CONNECTION WITH THE IMAGE IF ALL OF THE FOLLOWING APPLY:

1.  THE PERSON IN THE IMAGE IS DEPICTED IN A STATE OF NUDITY OR IS ENGAGED IN SPECIFIC SEXUAL ACTIVITIES.

2.  THE DEPICTED PERSON HAS A REASONABLE EXPECTATION OF PRIVACY.  EVIDENCE THAT A PERSON HAS SENT AN IMAGE TO ANOTHER PERSON USING AN ELECTRONIC DEVICE DOES NOT, ON ITS OWN, REMOVE THE PERSON'S REASONABLE EXPECTATION OF PRIVACY FOR THAT IMAGE.

3.  THE IMAGE IS DISCLOSED WITH THE INTENT TO HARM, HARASS, INTIMIDATE, THREATEN OR COERCE THE DEPICTED PERSON.

B.  This section does not apply to any of the following:

1.  THE REPORTING OF UNLAWFUL CONDUCT.

2.  Lawful and common practices of law enforcement, CRIMINAL reporting, legal proceedings OR MEDICAL TREATMENT.

3.  Images involving voluntary exposure in a public or commercial setting.

4.  An interactive computer service, as defined in 47 United States Code section 230(f)(2), or an information service, as defined in 47 United States Code section 153, with regard to content WHOLLY provided by another PARTY.

5.  ANY DISCLOSURE THAT IS MADE WITH THE CONSENT OF THE PERSON WHO IS DEPICTED IN THE IMAGE.

C.  A violation of this section is a class 5 felony, except that a violation of this section is a:

1.  Class 4 felony if the IMAGE IS DISCLOSED BY ELECTRONIC MEANS.

2.  CLASS 1 MISDEMEANOR IF A PERSON THREATENS TO DISCLOSE BUT DOES NOT DISCLOSE AN IMAGE THAT IF DISCLOSED WOULD BE A VIOLATION OF THIS SECTION.

D.  For the purposes of this section

1.  “DISCLOSE” MEANS DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER.

2.  “DISCLOSED BY ELECTRONIC MEANS” MEANS DELIVERY TO AN E‑MAIL ADDRESS, MOBILE DEVICE, TABLET OR OTHER ELECTRONIC DEVICE AND INCLUDES DISCLOSURE ON A WEBSITE.

3.  “HARM” MEANS PHYSICAL INJURY, FINANCIAL INJURY OR SERIOUS EMOTIONAL DISTRESS.

4.  “IMAGE” MEANS A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING.

5.  “REASONABLE EXPECTATION OF PRIVACY” MEANS THE PERSON EXHIBITS AN ACTUAL EXPECTATION OF PRIVACY AND THE EXPECTATION IS REASONABLE.

Changes to the law are in CAPS.

Any previous prosecutions under the ‘Revenge Porn' law must comply with the new statutes.  The new law goes into effect immediately.

About the Author

Shawn Hamp

President and lead counsel for the Law Offices of Shawn B. Hamp, P.C. (An Arizona Professional Corporation), Shawn Hamp has practiced law for more than 15 years with an emphasis in criminal law. An experienced trial attorney, Mr. Hamp has been lead counsel in hundreds of criminal trials and court...

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