Katherine Gabriel

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The United States legal system fails to adequately provide redress for victims of nonconsensual pornography, also known as “revenge porn.” Prior to 2013, the judicial system ignored the growing presence of nonconsensual pornography.[1] There were no laws specifically in place to either deter or punish individuals who distributed nonconsensual, sexually explicit material.[2] There was little—if any—justice available for victims of revenge porn.

However, by 2017, 36 states and the District of Columbia enacted revenge porn laws.[3] But, the current legal framework is incoherent and disjointed.[4] And the continued presence of revenge porn and the growing number of its victims reflects the law’s failure to sufficiently address nonconsensual pornography.[5]

From the feminist perspective, the current revenge porn laws epitomize the fundamental problems that women, as victims of crime, face in the legal system.[6] The judicial system, when characterized as a male-dominated, patriarchal structure, fails to adequately redress women who are victims of sexual crimes.[7] Revenge porn is a systemic, social issue that needs uniform law to effectively deter offenders and adequately protect potential victims.[8] The issue remains a concern for women and a priority for feminists alike.

This Note will provide a brief history of revenge porn laws, discuss the criticisms surrounding the existing laws, and propose an effective solution for nonconsensual pornography through legal reform. Part I will discuss the history and development of revenge porn laws. Part II will consider the current legal framework in place to combat revenge porn. Part III will explore relevant case law to illustrate the overall ineffectiveness of the existing statutes. In particular, Part III will provide a case study through Vermont’s revenge porn law, title 13, section 2606 of the Vermont statutes, Disclosure of Sexually Explicit Images Without Consent,[9] and the first case brought under this statute, Vermont v. Rebekah VanBuren.[10] On appeal before the Vermont Supreme Court, the VanBuren case challenged the constitutionality of Vermont’s revenge porn law.[11] Part IV will introduce relevant feminist theory. The feminist perspective serves as a critical element for this Note’s proposal of legal reform. And finally, Part V will offer an opinion as to how the Supreme Court should rule in the VanBuren case and, in light of the challenge to section 2606, recommend a redrafted version of the Vermont statute. In effect, this Note will propose a legal solution to nonconsensual pornography through an effective statute that acknowledges the underlying need for the feminist perspective within this debate.

[1] Mary Anne Franks, Drafting An Effective “Revenge Porn” Law: A Guide For Legislators, Cyber C.R. Initiative 3 (Sept. 22, 2016), https://www.cybercivilrights.org/guide-to-legislation/.

[2] Id. at 4.

[3] Aaron Minc, Revenge Porn: How to Fight Back, Defamation Removal Law (Sept. 12, 2017), https://www.defamationremovallaw.com/fighting-back-revenge-porn/.

[4] Charlotte Alter, Revenge Porn: How Women Are Fighting Against Revenge Photos, Time (June 13, 2017), http://time.com/4811561/revenge-porn/.

[5] See Danielle Citron & Mary Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 349 (2014) (indicating that the civil remedies available for victims of revenge porn are not effective when there is a continuing “rise in reports of victimization as well as the proliferation in revenge porn websites”).

[6] Cynthia J. Najdowski, Legal Responses to Nonconsensual Pornography: Current Policy in the United States and Future Directions for Research, 23 Psychol. Pub. Pol’y & L., 154, 155 (2017).

[7] Id.

[8] See Citron & Franks, supra note 5, at 349 (discussing how current civil and criminal laws applicable to revenge pornography are insufficient, an “ineffective deterrent,” and “fail to effectively address the issue [of revenge porn]”); see also Jessica Pollack, Getting Even: Empowering Victims of Revenge Porn with a Civil Cause of Action, 80 Alb. L. Rev. 353, 356 (2016–2017) (describing the “lack of continuity” between state laws criminalizing revenge porn as particularly problematic when each law holds individuals to different standards).

[9] Vt. Stat. Ann. tit. 13, § 2606 (2016).

[10] Decision on Mot. to Dismiss, Vermont v. Rebekah VanBuren, No. 1144-12-15Bncr (Vt. Super. Ct. Bennington Unit July 1, 2016).

[11] Brief for Appellee, Vermont v. VanBuren, No. 2016-253, 2017 WL 872500 at *2 (Vt. Feb. 13, 2017).