The revenge porn law in Arizona, A.R.S. 13-1425, is a relatively recent addition to the criminal code. A statute similar to the existing law was originally enacted in 2014. However, as soon as it was signed into law, it was challenged by the ACLU. That challenge included, among other things, the fact that the law, as then written, was overly broad. As such, it could have applied to artistic or newsworthy articles and books. As a result of the lawsuit, which put the act on hold, the legislature crafted a new bill, which
Revenge porn is likely, in many (though not all) cases, to stem from a romantic or intimate relationship. It may have its genesis in a couple sharing nude or partially nude photos or videos of each other, either in person or via email or text message. Revenge porn gets its name from the situation where, after the relationship sours, one of the parties uses the photo, etc., either to embarrass the other party, or as a kind of ransom to obtain something the person wants. There are, of course, other examples of revenge porn. While the above illustration is probably one of the more common ones, revenge porn can take many forms.
Revenge porn in Arizona is defined as the disclosure of an image of a person whose identity can be ascertained either from the image itself or from information that may accompany the image, if:
The law requires that all these elements be proven beyond a reasonable doubt in order to obtain a conviction.
While the section of the statute described above may appear relatively simple, it is actually fairly complex, and can often be confusing. As an example, there are at least 5 specific exceptions to which the law does not apply. There are also at least 7 sections of the statute devoted to defining the various terms used in the law. As a result, while some cases may appear relatively simple to identify as revenge porn, many are not. This leads to the possibility of numerous defenses and arguments against the application of the law in specific circumstances.
It should also be noted that the definitions contained in the law broaden, to some degree, its application. Disclosure, for example, may be an advertisement, a display, publication, or distribution. The method of disclosure is not necessarily central to the offense. Likewise, an “image” is not limited to a photograph – it also includes videotapes, films, and digital recordings. Similar definitions that appear in the statute affect terms such as “harm,” “expectation of privacy,” “specific sexual activities,” and “state of nudity.” If the conduct and circumstances do not fit into those definitions, the charge of revenge porn should be dismissed.
The offense of revenge porn is one that is easy to allege and may hinge primarily on issues such as intent and consent. In other situations, it could boil down to a swearing contest between the defendant and the alleged victim. In either case, there are defenses available in revenge porn cases.
As noted above, the law contains a number of exceptions, that is, situations that might otherwise be considered revenge porn based on the language of the statute, but which are intended to fall outside the definition of the crime. You are not committing the offense of unlawful disclosure of nude or sexual images – revenge porn – in any of the following situations:
In addition to these exceptions, listed in the statute, there are numerous possible additional defenses that may apply to a charge of revenge porn. With the presence of issues such as consent, expectation of privacy, and others, there are often many different issues that can be raised in response to a revenge porn allegation.
A revenge porn charge requires the prosecutor to prove each element of the offense beyond a reasonable doubt. As far as the photo or other depiction is concerned, it must show the alleged victim in a state of nudity or engaged in certain specific sex acts. The alleged victim must also have a reasonable expectation of privacy regarding the image(s). Finally, the image must be disclosed (or there must be a threat to disclose it) with the specific intent to harm, harass, threaten, coerce, or intimidate the other person. While the term “harm” is broadly defined in the statute, that definition does not include every possible harmful effect that might be intended. Rather, it is limited to serious emotional injury, physical injury, or financial injury.
Revenge porn may have one of several different classifications, and therefore several different potential penalties if you are convicted. Generally, it is a class 5 felony. However, there are a number of variations which may affect that designation. They include electronic disclosure (email, web, etc.), a class 4 felony; and threats to disclose, without actual disclosure, a class 1 misdemeanor.
Assuming no prior criminal convictions, a person who is found guilty of revenge porn could face a sentence of anywhere from several years in prison, to probation. But the judge also has the discretion to require a defendant convicted of revenge porn to register as a sex offender. Note that revenge porn is listed under Chapter 14 of the Criminal Code, entitled sex offenses. In some cases, the impact of sex offender registration could be much more significant, particularly for your future, than the issue of incarceration, probation, and/or fines.
While the concept of revenge porn may at first blush appear easy to understand, the statute in Arizona contains requirements that make proving the charge, in many cases, much more complicated that it might otherwise seem. The law also contains a network of definitions, which may confuse, rather than explain, the offense. The more complex the law, the more defenses may exist that can be utilized by a defendant to challenge the prosecution’s case.
With the possibility of incarceration, fines, and even registration as a sex offender, it pays to have a knowledgeable criminal defense lawyer at your side. If you have been charged with revenge porn, speak to an experienced sex crimes lawyer. Contact Feldman | Royle for a free consultation.
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