Revenge Porn and Privacy Violations

New Jersey’s revenge porn statute clearly favors victims, rather than the rights of the accused. A major difference of the New Jersey statute, when compared to federal and state revenge porn laws is that it lacks the “intent to harass” requirement that other state and federal statutes mandate. This forecloses the defense that the accused were not motivated by a desire to humiliate or harass the victim, but posted or sent the photographs for purely personal reasons.

New Jersey’s Invasion of Privacy in the Third Degree law states:

§ 2C:14-9 (b)(1): “An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed” N.J. Stat. Ann. § 2C:14-9 (West).

§ 2C:14-9 (c): “An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image, taken in violation of subsection b. of this section, of: (1) another person who is engaged in an act of sexual penetration or sexual contact; (2) another person whose intimate parts are exposed; or (3) another person’s undergarment-clad intimate parts, unless that person has consented to such disclosure.” N.J. Stat. Ann. § 2C:14-9 (West).

Defenses to Explore for Invasion of Privacy Charges:

1.Prior Notice and Consent:

It is an affirmative defense, under N.J.S.A. 2C:14-9(d), that the actor posted or otherwise provided prior notice to the person of the actor’s intent to engage in the conduct and the actor acted with a lawful purpose. Meaning, if the image was obtained and shared with consent, criminal liability cannot attach.

2.Constitutional Protections:

Although not challenged in Court yet, many jurists believe that New Jersey’s revenge porn statute may be too broad because it lacks the intent element. Therefore, it may violate individuals’ First Amendment rights.

If the image has artistic value, an argument can be made regarding the free speech protections under the First Amendment of the United States Constitution. When an individual intends to share a certain message it is considered speech protected by the First Amendment, if in light of the surrounding circumstances, those viewing the message would understand the intent behind it.

In her article titled Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. Rev. 181, 208 (2015); Emily Poole stated: “Since [non-consensual photography] is generally a lawfully obtained, accurate (not false or defamatory) depiction of an individual, it is likely speech entitled to First Amendment protection. The New Jersey . . . statutes [criminalizing invasion of privacy] therefore likely violate the First Amendment by criminalizing the distribution of protected speech.”

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You need an experienced attorney by your side if you are accused of Invasion of Privacy in the Third Degree, or other related charges to develop a well-thought out defense. Call us at 212-729-9494 or contact us today for your free initial consultation to find out if we are the right firm for you.