Members of the Penn State chapter of the Kappa Delta Rho fraternity are accused of taking photographs of unconscious, naked women and posting them to 144-member Facebook Group pages coyly titled "Covert Business Transactions" and "2.0." Soon after the story broke, one of KDR's members took it upon himself to defend the group's actions in an interview with Philadelphia Magazine.
According to the anonymous fraternity member, "It was a satirical group. It wasn't malicious whatsoever. It wasn't intended to hurt anyone. It wasn't intended to demean anyone. It was an entirely satirical group and it was funny to some extent."
This statement revealed a great deal about the mindset of a certain kind of fraternity brother, including a frail grasp of the concept of satire and a tendency to find sexual violation amusing. While the KDR member's attempt to defend the actions of the Facebook group was widely ridiculed, the unfortunate truth is that arrogant, self-serving, cavalierly misogynist attitudes like his are not confined to frat houses.
Indeed, a very similar attitude is on display in the American Civil Liberties Union's recent attempts to crush legislation that would criminalize behavior like the KDR Facebook group's. The ACLU has demanded that any criminal law attempting to regulate what is popularly though misleadingly referred to as "revenge porn" require that the perpetrator must have had an intimate relationship with the victim and must have acted with intent to harass or harm that victim. The ACLU has insisted on this definition not only in the media and in testimony in opposition to legislation protecting sexual privacy, but also in initiating a suit against Arizona's recently-enacted law addressing non-consensual pornography.
Some background: before 2013, only three states had criminal laws that prohibited the non-consensual disclosure of sexually explicit images. Since 2013, due to increased media exposure on the issue and the work of victim advocacy organizations such as the Cyber Civil Rights Initiative, for which I serve as Legislative and Tech Policy Director, 13 states have passed legislation, while another dozen states have pending legislation.
When the issue first began receiving extensive public attention, ACLU representatives went so far as to suggest that no criminal law prohibiting the nonconsensual distribution of sexually explicit images was permissible within the bounds of the First Amendment. The organization soon wisely abandoned this untenable approach, changing tack to insist on an arbitrarily narrow definition of the crime.
Arizona passed a law criminalizing non-consensual pornography in May 2014. In September 2014, the ACLU brought a lawsuit challenging the law. In a letter to Arizona lawmakers, the ACLU demanded that the state redefine the crime, stating that any law criminalizing "revenge porn" must be limited to circumstances where
"(1) a person who was or is in an intimate relationship with another person and who, (2) during and as a result of that relationship, obtained a recognizable image of such other person in a state of nudity, (3) where such other person had a reasonable expectation of privacy and an understanding that such image would remain private, (4) to display such image (5) without the consent of such other person, (6) with the intent to harass, humiliate, embarrass, or otherwise harm such other person, and (7) where there is no public or newsworthy purpose for the display."
In other words, according to the ACLU, laws that protect sexual privacy should only apply to perpetrators who were in intimate relationships with their victims and who disclosed the material with the intent to harm them.
Concerned about the effect the lawsuit could have on cases already initiated under the law, the sponsor of Arizona's legislation, Rep. J.D. Mesnard, offered to amend the law to respond to some of the objections raised by the suit. The parties agreed to stay enforcement of the law during the amendment process. As CCRI's Legislative Director, I have advised many state legislators regarding sexual privacy legislation, including Arizona. I had recommended that the Arizona law include a public interest exception (as indicated in my model statute), but the enacted legislation did not. While I advised Arizona's drafters that the amendment process provided an opportunity to correct this, I also noted that the intent to harass requirement was gratuitous and unintelligible from both policy and doctrinal perspectives. So much should be obvious from uncontroversial criminal legislation regarding other forms of private information. Both state and federal criminal laws prohibit the unauthorized disclosure of material such as medical records, financial data, and cell phone usage information. None of these statutes requires that perpetrators act with the intent to harass their victims, and certainly none require that the perpetrator and victim be intimate partners. The ACLU has nonetheless stated that it will continue to oppose Arizona's law unless it includes an "intent to harass" requirement.
It is hardly surprising that a group of college boys in the habit of circulating pictures of unconscious, naked women for entertainment would promote a narrow and illogical definition of criminal behavior. It is profoundly disappointing, however, that an organization supposedly dedicated to civil liberties would do the same. It is difficult to square the ACLU's own statements regarding individual privacy, as well as its support of legislation protecting other forms of private information, with this stance. "We are dedicated to ... expanding the right to privacy and increasing the control that individuals have over their personal information; and ensuring that civil liberties are enhanced rather than compromised by new advances in science and technology," proclaims the ACLU on its Technology and Privacy Project webpage. The ACLU has urged the Federal Trade Commission to go after data brokers who buy and sell information about consumers; has written a letter of support for the Genetic Information Nondiscrimination Act as a means of protecting "extremely personal sensitive information"; and encouraged Congress to pass legislation that would require patient consent for the use of medical records for "secondary purposes." All of these measures emphasize the right of individuals not to have their private information disclosed without consent, without any reference to motive.
The ACLU clearly recognizes that protecting privacy in these contexts does not violate the First Amendment. What is more, First Amendment doctrine demonstrates that arbitrary distinctions about motive actually create constitutional issues instead of resolving them. The ACLU declares that only one motive for disclosing intimate images without consent is impermissible: wanting to cause harm. If the disclosure is made for any other motive -- whether profit, reputation enhancement, entertainment, or "satire" -- then it's fine by the ACLU. This unprincipled and illogical approach opens the door to challenges both of viewpoint discrimination and under-inclusiveness. The ACLU's insistence on references to harassment or distress is all the more bizarre in light of its own stated objections to such terminology in other contexts.
Luckily for the Penn State KDR Facebook group -- and unfortunately for the women it victimized -- Pennsylvania passed the very kind of unjustifiably narrow law criminalizing invasions of sexual privacy that the ACLU endorses. Enacted in 2014, that law is restricted to those who, "with intent to harass, annoy or alarm a current or former sexual or intimate partner... disseminate a visual depiction of the current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct" (the sponsor of the legislation recently stated that she intends to close the "relationship loophole" in light of the KDR case; no word yet on whether she intends to address the "intent to harass" requirement as well).
The members of the KDR Facebook group could hardly have done better if they had written the law themselves. The ACLU's definition is custom-made for frat house misconduct. And the women whose pictures were posted to the KDR Facebook group aren't the only victims the ACLU's definition would leave unprotected. Here are just a few examples of others: women whose intimate pictures are exchanged as a "game" among California Highway Patrol officers; sexual assault victims like Audrie Pott whose rapists circulate images of the attack as a means of bragging to peers; celebrities like Jennifer Lawrence whose private images were posted by opportunists seeking Bitcoin and social status. Non-consensual pornography is devastating for victims regardless of the perpetrator's motive. A sexually explicit image can go viral within days or even hours, dominating Internet search results for victims' names and casting a shadow over their online and offline lives. Victims, the majority of whom are female, can experience severe psychological trauma, stalking, loss of professional and educational opportunities, the breakdown of family and other intimate relationships, and depression.
What explains the view that disclosing information about a person's medical history or financial status, regardless of motive, is destructive and should be punished by law, but that disclosing pictures of a person's naked body is trivial and should not be punished unless motivated by a desire to harm the victim? For frat brothers who circulated pictures of naked, unconscious women as entertainment, the answer is obvious: they don't see women as people. What's the ACLU's answer?
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