THE BLOG
02/05/2014 06:29 pm ET | Updated Apr 07, 2014

Complicity in Revenge Porn?

While at a privacy event this last week, the topic of revenge porn came up as an area where law enforcement officials were starting to take a keen interest in prosecuting the perpetrators who have victimized men and women with content, such as nude photos, by publicly posting and disseminating the content online through "revenge porn" websites and other portals.

In the same breath where harsher criminal penalties and creative legal strategies to combat revenge porn were applauded, a law enforcement official proclaimed disbelief at the fact that someone would have shared a naked photo of themselves with someone else, since this was something unimaginable to them. It begged the question that continually comes up in conversations around revenge porn: Why would a person share a naked photo with someone else?

Herein lies one of the biggest issues that perpetuates the continued cultural acceptance of revenge porn: our attitudes in understanding where the violation occurred coupled with a lack of understanding of what "privacy" has meant and continues to mean. In essence, what is the impact of continually asking the "why would someone do that" question?

Several years ago, I spent quite some time while writing an article digging into the precise matter of what privacy, in the civil sense, means today. In terms of distilling down when something is indeed private, much of the law comes down to looking at the individual actor who is or may be involved in some form of sharing (A) and a second party (B). It has been assumed that if A shares something with B, this transaction is entitled to some privacy. That which is shared in the private domain is subject (and should be subject) to greater protection in the eyes of the law. If A decides to share something publicly with B, C, D and everyone else, whether tacking up something on bulletin boards around their community or publicly posting it online, the context changes as the person has voluntarily submitted the content to the public domain.

This brings us back to the issue with law enforcement officials, advocates, legislators and others who are trying to protect victims of revenge porn but, at the same time, proclaim disbelief that someone would share a naked photo of themselves with another individual.

We get it. You would never share anything that might be judged as inappropriate online. You have never sent an instant message to someone with a remark you did not want shared with a third party or sent an email to someone that, if it was shared publicly, you could be embarrassed or something worse could happen. You have never shared something privately online or using a device, like a smartphone, which could later be used without your permission with a third party. If this is you, you are extremely lucky and exceedingly prudent.

For the rest of us, we rely on the fact that when we share something in a private context, with an audience of perhaps one other person, that it will remain private. We don't just rely on this because it harkens back to second grade "friend rules" of not telling secrets; we can rely this because the law has protected interactions in this way for years.

This is in no way meant to dissuade teaching people the impacts of sharing in our digital world. It is important for people to be educated about the difference between sharing on and offline, the permanence of such content, where it might be stored and who may have continued access to it. Education on how technology works and may affect our rights to control our content is paramount.

Yet, every time we ask the "why would someone do that" question, we are putting the victims that we seek to protect in the position of facing judgment, which in effect, makes it seem like the narrative is one of the victim's complicity with the action that has happened to them when it is anything but.

While combating something like revenge porn requires education, the strong arm of the law and innovative civil legal strategies, it also requires a change in attitude. The endurance of a narrative where the victim has somehow done something wrong or shameful that contributed to the actions perpetrated against their person makes us all complicit in failing to protect our privacy when we need it most, in our intimate and vulnerable life moments.

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