BILL ANALYSIS Ó
SB 255
Page 1
Date of Hearing: August 27, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 255 (Cannella) - As Amended: August 21, 2013
SUMMARY : Creates a new misdemeanor for the distribution of a
consensually taken image of an identifiable person in a state of
full or partial undress when the image is distributed with the
intent to cause serious emotional distress, and the person
suffers such distress. Specifically, this bill :
1)Provides that any person who photographs or records by any
means the image of another identifiable person with his or her
consent who is in a state of full or partial undress in an
area in which the person has a reasonable expectation of
privacy, and subsequently distributes the image with the
intent to cause serious emotional distress, and where the
person depicted does suffer serious emotional distress, is
guilty of a misdemeanor.
2)Specifies that nothing in this subdivision will preclude
punishment under other any section of law providing for
greater punishment.
3)Contains an urgency clause.
EXISTING LAW :
1)Makes it a misdemeanor for any person who looks through a hole
or opening, into, or otherwise views, by means of any
instrumentality, including, but not limited to, a periscope,
telescope, binoculars, camera, motion picture camera,
camcorder, or mobile phone, the interior of a bedroom,
bathroom, changing room, fitting room, dressing room, or
tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the
intent to invade the privacy of a person or persons inside.
[Penal Code Section 647(j)(1).]
2)Makes it a misdemeanor for any person to use a device to
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secretly videotape or record by electronic means another
identifiable person under or through his or her clothing, for
the purpose of viewing that person's body or undergarments
without consent and under circumstances in which that person
has a reasonable expectation of privacy, if the perpetrator
commits the act with a prurient intent. [Penal Code Section
647(j)(2).]
3)Makes it a misdemeanor for any person who uses a concealed
instrumentality to secretly videotape or record another person
who is in a state of full or partial undress, for the purpose
of viewing that person's body or undergarments without consent
while that person is in a bedroom, bathroom, changing room,
fitting room, dressing room, or tanning booth, or the interior
of any other area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy
of that individual. [Penal Code Section 647(j)(3).]
4)Punishes a second or subsequent commission of the
aforementioned invasions of privacy with the naked eye or with
the use of an instrumentality by one up to one year in jail, a
fine of up to $2,000, or both. However, if the victim was a
minor at the time of commission, then the crime is punishable
by one up to one year in jail, a fine of up to $2,000, or
both, regardless of whether it was a second or subsequent
offense. [Penal Code Section 647(l).]
5)Provides that every person who, with intent to annoy,
telephones or makes contact by means of an electronic
communication device with another and addresses to or about
the other person any obscene language, or addresses to the
other person any threat to inflict injury to the person or
property of the person addressed or any member of his or her
family is guilty of a misdemeanor. The statute does not apply
to communication made in good faith. [Penal Code Section
653m(a).]
6)Provides that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any
obscene matter depicting a person under the age of l8 years
engaging in or simulating sexual conduct, with the intent to
distribute, exhibit, or exchange such material, is guilty of
either a misdemeanor punishable by imprisonment in the county
jail for up to one year, by a fine not to exceed $1,000, or
both, or guilty of a felony punishable by imprisonment in the
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state prison, and/or a fine not to exceed $10,000. [Penal
Code Section 311.1(a).]
7)Specifies that every person who sends, brings, possesses,
prepares, publishes, produces, duplicates or prints any
obscene matter depicting a person under the age of 18 years
engaging in or simulating sexual conduct for commercial
purposes is guilty of a felony, punishable by imprisonment in
the state prison for two, three, or six years and a fine up to
$100,000. [Penal Code Section 311.2(b).]
8)Provides that any person who hires or uses a minor to assist
in the preparation or distribution of obscene matter is guilty
of a misdemeanor, unless the person has a prior conviction, in
which case the crime is a felony. [Penal Code Section
311.4(a).]
9)Provides that any person who hires or uses a minor to assist
in the possession, preparation or distribution of obscene
matter for commercial purposes is guilty of a felony,
punishable by imprisonment in the state prison for three, six,
or eight years. [Penal Code Section 311.4(b).]
10)Makes it a misdemeanor for a person to advertise or promote
the sale, distribution, or exhibition of matter represented or
held out by him or her to be obscene. (Penal Code Section
311.5.)
11)Defines "obscene matter" as "matter, taken as a whole, that
to the average person, applying contemporary statewide
standards, appeals to the prurient interest, that, taken as a
whole, depicts or describes sexual conduct in a patently
offensive way, and that, taken as a whole, lacks serious
literary, artistic, political, or scientific value." [Penal
Code Section 311(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "'Cyber revenge'
or 'revenge porn' refers to the posting of illicit pictures of
another person without his or her consent, often as
retaliation following a bitter breakup between partners.
Current law is silent as to the illegality of this disturbing
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practice.
"While the creation, possession, or distribution of
sexually-charged images of a minor can be charged according to
child pornography prohibitions, the same actions committed
against victims over 18 years old do not constitute a crime
under current statute.
"Victims of this cruel act are often so humiliated that they
pose a threat to harming themselves, as evidenced by numerous
examples of cyber revenge victims who have taken their own
lives. Cyber revenge and its ugly consequences should not be
tolerated."
2)"Cyber Revenge" or "Revenge Porn" : Recently, there have been
numerous publicized incidents of cyber revenge or revenge porn
which involves the posting of nude or sexually explicit photos
without the consent of the person depicted. A recent
unpublished Court of Appeal case illustrates the use of cyber
revenge to harass, defame, and humiliate a former spouse or
partner. In People v. Rosa, Fifth Appellate District,
F063748, decided March 12, 2013, the facts are described as
such:
"In August 2009 Jennifer was employed at a bank. While at work
she received a phone call from a man who said he was calling
about her ad on an Internet Web site. Jennifer informed this
man he had the wrong number and he hung up. Within the hour
she received multiple similar phone calls. Jennifer did not
know what the callers were talking about because she had not
placed an ad on the Web site and she had not authorized anyone
to do so on her behalf. In addition, over a three-week period
a dozen or so men whom Jennifer had never met came into the
bank asking her about the ad posted on the Web site. One man
yelled at her that she should be ashamed, teasing men by
placing an ad like that on the Internet. Another man waited
at her car for her to get off work and made rude comments to
her. The calls went on for weeks. Jennifer had to change
jobs and her residence because of the constant harassment.
"Jennifer eventually checked the Web site and found the
advertisement in the personal ads section. The ads contained
four photographs of Jennifer in the nude that were taken
during her marriage to Rosa. Jennifer never intended for
anyone to see the photos but Rosa. She never gave Rosa
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permission to display the photos publicly. Jennifer was
shocked and upset by the advertisement. She called the police
and made a report."
Rosa was convicted of stalking, identity theft, six counts of
false personation, and six counts of unauthorized electronic
distribution of personal information. The Court of Appeal
affirmed all the convictions.
3)First Amendment : The First Amendment provides that "Congress
shall make no law . . . abridging the freedom of speech."
(U.S. Const, Amend. I, Section 1.) The California
Constitution also protects free speech. "Every person may
freely speak, write and publish his or her sentiments on all
subjects, being responsible for the abuse of this right. A
law may not restrain or abridge liberty of speech or press."
(Cal. Const. Art. I, § 2.) "[A]s a general matter, the First
Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content." [Ashcroft v. American Civil
Liberties Union (2002) 535 U.S. 564, 573.]
Nevertheless, the protections of the First Amendment are not
absolute. Restrictions on the content of speech have been
long been permitted in a few limited areas including
obscenity, defamation, fraud, incitement, and speech integral
to criminal conduct. [United States v. Stevens (2010) 559
U.S. 460, 130 S.Ct. 1577, 1584, citations omitted.] The First
Amendment permits "restrictions upon the content of speech in
a few limited areas which are 'of such slight social value as
a step to truth that any benefit that may be derived from them
is clearly outweighed by the societal interest in order and
morality.'" [R.A.V. v. City of St. Paul (1992) 505 U.S. 377,
382-383.]
It should be noted that cyber-revenge bills recently failed
passage in Florida. In both instances, First Amendment
concerns were raised. (See HB 787 of the 2013 Legislative
Session
; and SB 946 of the 2013 Legislative Session
.)
4)Vagueness : The underlying concern when a statute is
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challenged as void for vagueness is the core due process
requirement of adequate notice. [People ex rel. Gallo v.
Acuna (1997) 14 Cal.4th 1090, 1115.] "No one may be required
at peril of life, liberty or property to speculate as to the
meaning of penal statutes. All are entitled to be informed as
to what the State commands or forbids." [Lanzetta v. New
Jersey (1939) 306 U.S. 451, 453.] Thus, "a statute which
either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess
at its meaning and differ as to its application, violates the
first essential of due process of law." [Connally v. General
Construction Co. (1926) 269 U.S. 385, 391.] "Although it is
not likely that a criminal will carefully consider the text of
the law before he murders or steals, it is reasonable that a
fair warning should be given to the world in language that the
common world will understand, of what the law intends to do if
a certain line is passed. To make the warning fair, so far as
possible the line should be clear." [McBoyle v. United States
(1931) 283 U.S. 25, 27.]
A claim that a law is unconstitutionally vague can succeed only
where the party challenging the law demonstrates that the law
is vague as to him or her, or impermissibly vague in all of
its applications. [People ex rel. Gallo v. Acuna, supra, 14
Cal.4th at p. 1116.] To make that determination, a court will
consider the law's purpose and read the challenged terms "in
that context as they should be." [Tobe v. City of Santa Ana
(1995) 9 Cal.4th 1069, 1107.] In doing so, a court is not
required to consider every conceivable situation which might
arise under the language of the statute, so long as that
language may be given a reasonable and practical construction
in accordance with the probable intent of the Legislature, and
encompassing the conduct of the defendant. [Bowland v.
Municipal Court (1976) 18 Cal.3d 479, 492.]
Because some of the language in this bill is subject to a number
of interpretations, it is possible that this bill may be
challenged as vague. This bill provides in part: "any person
who photographs or records by any means the image of another
identifiable person with his or her consent who is in a state
of full or partial undress in an area in which the person has
a reasonable expectation of privacy?." What is meant by the
phrase "in an area in which the person has a reasonable
expectation of privacy"? Does this phrase refer to parts of
the body, or does it refer to the location in which an image
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is taken?
Additionally, should the language be clarified to limit "full or
partial undress" to intimate body parts? Without this
limitation, a photograph of a person wearing a bathing suit
would technically fall within the parameters of the statute.
Because of the legislative deadline, this Committee was unable
to suggest further amendments to avoid vagueness problems. To
alleviate the vagueness concerns, the author should consider
amending the bill as follows:
"Any person who photographs or records by any means the image of
another identifiable person 's intimate body parts with his or
her consent who is in a state of full or partial undress under
circumstances where the parties agree or understand that the
image shall remain private in any area in which the person
being photographed or recorded has a reasonable expectation of
privacy , and the person subsequently distributes the image
taken with the intent to cause serious emotional distress, and
the other depicted person suffers serious emotional distress."
5)Argument in Support : According to the California Partnership
to End Domestic Violence , "'Cyber revenge' is an invasive and
increasingly common crime, which often involves the online
posting of private or intimate photos of another person
without the person's consent. In many cases, the pictures are
taken over the course of a relationship and while the victim
may have consented to the original taking of the picture, he
or she did not consent to the electronic distribution of the
images. Typically, these photos are posted to social media
sites to shame, embarrass, harass, and intimidate the victim.
Existing law does nothing to specifically protect the victims
of these crimes.
"Many survivors of domestic violence have experienced this
specific abuse tactic. It is especially common when the
victim has left the relationship, and as an attempt to exact
revenge and exert power over the victim, an abuser will post
extremely personal pictures of a sexually charged nature. The
invasion of privacy and significant emotional distress these
actions can cause have severe consequences. It can damage the
victim's personal relationships and leave them feeling
helpless. In one case, a high school student killed herself
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after discovering explicit photos of her distributed
electronically."
6)Prior Legislation :
a) SB 1484 (Ackerman), Chapter 666, Statutes of 2004,
expanded the crime of disorderly conduct to include the use
of a concealed instrumentality to secretly videotape
another fully or partially undressed person for the purpose
of viewing that person's body or undergarments without the
consent while that person is inside a bedroom, bathroom,
changing room, fitting room, dressing room, or tanning
booth, or in any other area in which that other person has
a reasonable expectation of privacy, with the intent to
invade that person's privacy.
b) AB 919 (Houston), Chapter 584, Statutes of 2008,
provided that every person who uses an electronic
communication device to harass another through the actions
of a third party, as specified, is guilty of a misdemeanor.
c) AB 665 (Torres), Chapter 658, Statutes of 2011, doubled
the misdemeanor penalties for peeping when the crime is
committed by a repeat offender or when the offense is
committed against a minor.
d) AB 321 (Hernández), of the 2011-12 Legislative Session,
required additional penalties be imposed on a minor
adjudicated of "sexting." AB 321 was held on the Assembly
Appropriations Committee's Suspense File.
e) AB 1528 (Donnelly), of the 2011-12 Legislative Session,
would have made the crime of peeping a felony punishable in
the state prison. AB 1528 failed passage in this
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership to End Domestic Violence
California State Sheriffs' Association
Crime Victims Action Alliance
Crime Victims United
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Opposition
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744