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Nonconsensual Pornography in the Modern World

By: Abby Loomis

In the era of high-speed internet, 5G, and social media, things can and often do go viral, fast. In the best cases, sweet little dogs and fun baking videos gain 15 million views. In the worst (and most terrifyingly common) cases, intimate pictures meant for one’s partner circulate the internet without consent. 

According to a 2019 study, “[o]f the 3,044 adult participants (54% women), 1 in 12 reported at least one instance of nonconsensual pornography victimization in their lifetime, and 1 in 20 reported perpetration of nonconsensual pornography” (also known as NCP). While anyone can be a victim of nonconsensual porn, 90% of victims are women. However, it is not just these images that are put online, as 59% of the time a full name is attached to the photo and in 49% of these cases, social media information is attached. This opens the victim to harassment, stalking, and the possibility of losing their job on top of the severe emotional trauma of being publicly violated and humiliated, oftentimes by someone who was or is close to them. And, like everything else, the COVID-19 pandemic has had an impact on NCP as well, with increased cases in both the U.S. and the U.K

NCP is terrifying, and this crime takes an immense toll on its victims. There are countless cases of young women (in some cases, men) who have had their lives upended entirely by this horrible crime, with images (taken consensually and nonconsensually) of them being spread. Victims are often blamed for the atrocity done against them and have their trauma dismissed. To many, if the photo was taken consensually, then the victim ‘should have known better’ or taken precautions. Responsibility is taken away from the person who actively violated trust, privacy, and another’s right to choose if such images ought to be posted, and placed onto the person who took photos under the assumption that they would not be used against them. And in the cases that the images are taken nonconsensually, excuses for the perpetrators are equally abundant. After Audrie Potts, a 15-year-old girl, was sexually assaulted at a party while intoxicated, she woke up to find that photos of her assault were circulating around the school and the internet. Audrie was bullied to the point of suicide, and in the ensuing investigation, she was blamed because she had been drunk at the time or was speculated to have kissed two of the boys, and others insinuated that she probably liked it and that her suicide was due to other reasons than the harassment and humiliation she faced. This is sadly one of many stories, one of many lives which have been lost because of NCP. 

As well, the aforementioned 2019 study reported that 66% of women and 82% of men do not seek help, with most women doing so out of shame and most men claiming that it did not bother them. Within the context of social norms, this makes sense. Women are commonly taught that our sexuality is something to be ashamed of, that we should be chaste and pure. The idea of sharing nude images for many can seem taboo, something we shouldn’t even think about, but to then have those pictures leaked and to have people know that we are not as pure as the Virgin Mary? That shame and embarrassment is turned inward, resulting in self-blame, making it unlikely for the person to pursue the justice that they rightfully deserve. For many men, having sex and ‘getting laid’ is viewed as a source of pride. Being seen as sexually desirable is beneficial, so when a man is a victim of NCP, it is somehow construed as a compliment instead of the complete invasion of privacy that it is.

One would assume that the penalties for such a horrendous crime would be high and that it would be illegal for websites to host and distribute these photos. One would be depressingly wrong. While 46 states have laws concerning NCP, in 17 states it is regarded as a misdemeanor (punishable by up to a year in jail), only 11 states it is regarded as a felony (punishable for more than a year in jail), and in the remainder, it depends on the specifics of the case. There are no specific laws in Wyoming, Mississippi, South Carolina, or Massachusetts. In addition, no law in the U.S. currently requires the perpetrator to register as a sex offender, that is entirely at the judge’s discretion. 

 Websites dedicated entirely to nonconsensual porn (which are oftentimes the suggested search terms to “non consensual porn laws”) are protected by Section 230 of the Communications Decency Act, which states that websites cannot be punished for what others post. And since it is users who upload these images, the websites are protected from prosecution and can freely profit off of this crime, from advertisements (such as the now-defunct IsAnyoneUp?, which reportedly made $13,000 a month at one point) or from forcing victims to pay for the photos to be taken down. Even more shockingly, it was only in December of 2020 when Pornhub, one of the most popular pornographic websites, began to crack down on nonconsensual porn, which was often labeled as “stolen” or “leaked”. Pornhub quite literally attempted to film a ‘movie’ in space five years before they attempted to get NCP off of their platform.

However, there is currently a method where many victims can legally force these websites to take down their photos- copyright. Under the Digital Millennium Copyright Act, if the victim took the photo themself, they can file for a copyright on the photos, which is a complex process that requires providing a copy of the images to the copyright office.  With this copyright, the victim can file a takedown notice against the website, which requires them to take the copyrighted images down or file a counter-claim stating that the website has a right to post the images. After this point, if the website keeps the photos up, the victim can sue for copyright infringement, which can result in up to $250,000 in fines and up to five years in prison per offense. While it is good that such a solution is plausible, I want to make this clear: the current laws surrounding NCP are so bad that victims have to use copyright laws to get the photos taken down, which is horrendous. This solution provides no actual punishment to the person who uploaded the photos and can require the victim to file notices against every website posting their images.

As well, even in states with laws concerning NCP, victims have a hard time obtaining justice. In a UK study, 94.7% of the police officers participating admitted that they had no training on how to deal with revenge porn. The combination of victim-blaming and lack of training can lead to deeply humiliating and traumatizing experiences with police, which can lead victims to drop their charges.  

While the situation is more than terrifying, there is a glimmer of hope on the horizon. Recently the SHIELD Act, also known as the “Stopping Harmful Image Exploitation and Limiting Distribution Act of 2021” has been introduced in Congress as an amendment to the Violence Against Women Reauthorization Act. If passed, this law would make the distribution of NCP a federal crime, punishable by up to 2 years in prison for each victim, and would punish websites that intentionally and predominantly distribute NCP.  This law would finally bring justice to victims who have had their privacy and autonomy violated by this heinous crime, and could finally punish the perpetrators of this crime and the websites which they utilize. While this law has been proposed many times, it has not yet become law, but it did recently pass through the House. And more courts are ruling on the constitutionality of anti-NCP laws and upholding the fact that distribution of NCP is not protected under the First Amendment, and therefore can be prosecuted. This means if the SHIELD Act is finally passed, it has legal precedent behind it that may help ensure that this law is not overturned by the courts.

In order to turn this glimmer of hope into a beacon of safety for victims of NCP, we must pass the Violence Against Women Reauthorization Act of 2021, which includes the SHIELD Act. It has already passed the House, so now we call our Senators and ensure that they vote for this legislation. We must protect all victims of this horrible act, we cannot and will not let this horror go on any further.