Legislator renews effort to pass 'revenge porn' bill

PHOENIX — Saying existing laws leave victims without protection, a Chandler lawmaker is making one last stab at making “revenge porn” a crime.

Republican Rep. J.D. Mesnard has introduced legislation for the coming session to make it a crime to print, publish or post on the Internet naked photos of others without their consent. HB 2001 includes a presumptive prison term of 1½ years for violators — and 2½ years if the disclosure is electronic.

The measure targets situations where someone may have taken a compromising photo during a relationship, a picture that was not meant to be shared with others. What can happen, Mesnard said, is the relationship ends, often badly, and the jilted partner decides to get even by putting the images online.

This is actually the third attempt at enacting an enforceable law.

Legislators gave their approval to one version in 2014.

It made it a felony to “intentionally disclose, display, distribute, publish, advertise or offer” a photo, video, film or digital recording of someone else who is naked “if the person knows or should have known that the depicted person has not consented to the disclosure.” That included not just images of nudity but also anyone engaged in any sex act.

But that was challenged in federal court by the American Civil Liberties Union and a private law firm representing book publishers who charged that the law would criminalize otherwise innocent activity.

Attorney Lee Rowland said that, on one hand, the measure would have a “chilling effect” on merchants, causing them to pull books with images of nudity from their shelves for fear prosecutors would use the law against then. She also said the law was so broad a mother who shows a naked photo of her baby to a neighbor could be charged.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

The Attorney General’s Office essentially conceded defeat, agreeing not to try to defend the law and eventually allowing a judge to enjoin its enforcement.

In the meantime, Mesnard crafted a scaled-back version. He got it through the House only to have the state Senate adjourn for the year before taking it up.

HB 2001 is a carbon copy of that measure. And based on conversations he’s had with challengers, Mesnard thinks that, unlike the 2014 version, it will pass legal muster.

There are two big changes from that original law.

First, prosecutors would have to show that the person in the pictures had a “reasonable expectation of privacy.” Put another way, there would have to be evidence the person in the picture assumed it would not be shared, even if he or she took the picture and then emailed it to someone else.

It also requires proof that the image wad disclosed “with the intent to harm, harass, intimidate, threaten or coerce the depicted person.”

The changes apparently have satisfied challengers.

“There have been significant discussions,” said ACLU attorney Dan Pochoda. He said while the new version does not address all of his organization’s concerns, if HB 2001 becomes the law “the litigation would end.”