ST. PAUL, Minn. - When it comes to “revenge porn,” the law needs to catch up to technology, a state legislator says.

A recent Minnesota Court of Appeals ruling, dismissing a criminal case, said existing laws don’t address the emerging cybercrime.

So state Rep. John Lesch, DFL-St. Paul, who is also a criminal prosecutor in the St. Paul City Attorney’s office, is assembling a group of attorneys, lawmakers and free-speech advocates to craft a law to deal with it.

“Revenge porn is a specific type of crime that needs its own law,” Lesch said Friday. “It can’t crawl under the parameters of a catch-all like criminal defamation or disorderly conduct.”

Revenge porn is the nonconsensual use of someone’s image online, often an intimate or sexual image, with the intent to humiliate or intimidate that person.

The issue has arisen in a digital era of smartphones.

Often in Minnesota, revenge porn cases are charged under the state’s criminal defamation statute. But the state Court of Appeals on May 26 ruled that the law is overbroad and unconstitutional.

“It’s a square peg, round hole problem,” St. Paul City Attorney Samuel Clark said. “That’s why a growing number of states are looking at this and creating new classifications of criminal conduct. We’ve used criminal defamation in the past, and now that is no longer an option, so we need to look at other options.”

To date, 17 states have crafted laws that attempt to address revenge porn crimes, according to Carrie Goldberg, a Brooklyn, N.Y.-based volunteer attorney with the Cyber Civil Rights Initiative, which has a national campaign called “End Revenge Porn.”

Minnesota is poised to be next.

Lesch has asked 15 people, including Goldberg, to join the working group, which will have its first meeting by the end of June.

Lesch hopes to present a preliminary version of the bill during the upcoming special session, with hopes that a more refined version will be ready by this fall.

Revenge porn is often an extension of a domestic relationship and abuse, Lesch said, so the new law will likely fall under the same legal umbrella as domestic violence.

Not all states have organized their revenge porn laws the same way - some categorize it under privacy or unlawful surveillance laws, others under sex crimes - but it’s ultimately an issue of sexual consent, Goldberg said.

“But there is a significant relationship between domestic violence and revenge porn,” Goldberg said. “And it’s a tactic that’s used by abusers to both keep individuals in a relationship, to threaten to disseminate images if the victim leaves the relationship, and it’s used by offenders to punish the victim if they leave the relationship.”

Lesch’s working group will discuss what a revenge porn law should cover, such as whether a person published something with malicious intentions or whether photos were used. The law will need to find a way to address First Amendment rights, which is the problem with the ruled-out defamation law.

Goldberg noted that, while someone’s intentions may not have been to harm the victim, the result is the same.

“We are doing a major disservice to the victims if we require that ‘intent to harm’ element in this law,” Goldberg said. “These pictures, if they are shared with another person, there’s an expectation of privacy there. If the offender shares it with one person or the entire Internet, that privacy has been breached either way.”

The case that prompted Minnesota’s May 26 appellate ruling involved no photos. The court’s decision reversed the conviction of Timothy Turner, who was found guilty of criminal defamation for posting sexually explicit Internet ads in 2013 that appeared to be posted by his ex-girlfriend and her underage daughter. The ads led men to contact both females for sex; some sent pornographic images to the girl.

Turner admitted he posted the ads because he was angry.

The appeals court ruled that Minnesota’s criminal defamation law violates the First Amendment because it allows for prosecution of true statements, which are protected speech, as well as false statements. They also found that it doesn’t require the state to prove “actual malice,” knowledge that a statement is false or made with reckless disregard for the truth.

While Turner’s actions were “reprehensible,” the court of appeals said, it could not uphold a conviction based on an unconstitutional statute.

With criminal defamation out of the equation, Lesch jumped at the chance to address a hole in the law.

Lesch said the working group will include domestic abuse prevention advocates, free-speech groups and defense attorneys, as well as prosecutors and politicians.



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