BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1255 (Cannella) 5
As Introduced February 20, 2014
Hearing date: April 29, 2014
Penal Code
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VIOLATION OF PRIVACY RIGHTS:
POSTING SEXUAL IMAGES OF ANOTHER WITHOUT CONSENT
HISTORY
Source: Author
Prior Legislation: SB 255 (Cannella) - Ch. 466, Stats. 2013
AB 665 (Torres) - Ch. 658, Stats. 2011
AB 182 (Ackerman) - Ch. 231, Stats. 1999
Support: California State Sheriffs' Association; Crime Victims
United of California; California Police Chiefs
Association; California Partnership to End Domestic
Violence
Opposition:American Civil Liberties Union
KEY ISSUES
SHOULD DISTRIBUTION WITHOUT CONSENT OF AN IMAGE OF AN INTIMATE BODY
PART OR SEXUAL ACT OF ANOTHER IDENTIFIABLE PERSON BE A MISDEMEANOR?
SHOULD STATUTES INVOLVING SEARCH WARRANTS, FORFEITURE AND
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DETERMINATION OF THE PLACE OF TRIAL FOR A CRIME COMMITTED IN
MULTIPLE JURISDICTIONS BE APPLIED TO UNAUTHORIZED DISTRIBUTION OF AN
INTIMATE IMAGE?
PURPOSE
The purpose of this bill is to 1) provide that the distribution
of an image of another, identifiable person's intimate body
part, or an image of the person engaged in a sexual act, without
consent of the person depicted, is a misdemeanor; 2) provide for
confiscation of the offending image or similar images; 3)
provide for forfeiture of electronic devices used to commit the
crime; 4) authorize search warrants for evidence of the crime;
and 5 ) apply the procedures for determining venue for a
multiple county identity theft crime to cases where the
unauthorized distribution of an intimate image involved acts
occurring in different counties.
Existing law includes the crime of making a credible threat of
death or great bodily injury, which includes the following
elements: The defendant made the threat "verbally," in writing
or by means of an electronic communication device and with the
intent that it be taken as a threat; and it appears that that
the defendant had the means and intent to carry out the threat
such that the victim was placed in sustained fear for his own
safety or that of his immediate family. This crime is an
alternate felony-misdemeanor, punishable by a jail term of up to
one year, a fine of up to $1000, or both, or by imprisonment in
a state prison for 16 months, 2 years or 3 years and a fine of
up to $10,000. (Pen. Code � 422.)
Existing law defines the crime of "stalking" as repeatedly
harassing or following another person in conjunction with the
making of a credible threat against that person or his or her
immediate family. Stalking is an alternate felony-misdemeanor
punishable by up to one year in the county jail and/or a fine of
up to $1000, or by imprisonment in state prison for 16 months, 2
or 3 years, and/or a fine of up to $10,000. (Pen. Code �
646.9.)
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Existing law 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. (Pen. Code
� 653m, subd. (a).)
Existing law provides that every person who makes repeated
telephone calls or makes repeated contacts by means of an
electronic communication device with intent to annoy another
person at his or her residence is guilty of a misdemeanor. The
crime does not include an element that a conversation took place
in the telephone call or electronic contact. The statute does
not apply to communication made in good faith. (Pen. Code �
653m, subd. (b).)
Existing law provides that every person who makes repeated
telephone calls or makes repeated contact by means of an
electronic communication device with the intent to annoy another
person at his or her place of work is guilty of a misdemeanor
punishable by a fine of not more than $1000, by imprisonment in
a county jail for not more than one year, or by both that fine
and imprisonment. Nothing in this subdivision shall apply to
telephone calls or electronic contacts made in good faith. This
subdivision applies only if one or both of the following
circumstances exist:
There is a temporary restraining order, an injunction,
or any other court order, or any combination of these court
orders in effect prohibiting the behavior described in this
section.
The person makes repeated telephone calls or contact by
means of an electronic communication device with the intent
to annoy another person at his or her place of work,
totaling more than 10 times in a 24-hour period, whether or
not conversation ensues from the call or contact, and the
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calls or contacts are made to the workplace of an adult or
emancipated minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person with whom the
person has a child or has had, or is having, a dating or
engagement relationship. (Pen. Code � 653m, subd. (c).)
Existing law provides that a court may issue an ex parte order
enjoining a party from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing,
telephoning, destroying, contacting, coming within a specified
distance of, or disturbing the peace of the other party. Upon a
showing of good cause, the order may cover another named family
or household members. (Fam. Code � 6320.) Any willful
violation of such an order is contempt of court, a misdemeanor,
with a maximum jail term of one year, a fine of up to $1000, or
both. (Pen. Code
� 166, subd. (c).)
Existing law provides that any person who willfully disobeys any
court order is guilty of contempt of court, a misdemeanor,
punishable by up to six months in the county jail, a fine of up
to $1000, or both. (Pen. Code � 16, subd. (a)(4).)
Existing law provides that every person who, with intent to
place another person in reasonable fear for his or her safety,
or the safety of the other person's immediate family, by means
of an electronic communication device, and without consent of
the other person, and for the purpose of causing that other
person unwanted physical contact, injury, or harassment, by a
third party, electronically distributes, publishes, e-mails,
hyperlinks, or makes available for downloading, personal
identifying information, including, but not limited to, a
digital image of another person, or an electronic message of a
harassing nature about another person, is guilty of a
misdemeanor punishable by up to one year in the county jail, by
a fine of not more than one thousand dollars ($1000), or by both
that fine and imprisonment. (Pen. Code � 653.2, subd. (a).)
Existing law defines the term "electronic communication device"
to include, but not be limited to telephones, cellular phones,
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computers, Internet Web pages or sites, Internet phones, hybrid
cellular/Internet/wireless devices, personal digital assistants
(PDA), video recorders, fax machines, or pagers. "Electronic
communication" has the same meaning as the term is defined in
Section 2510 (12) of Title 18 of the United States Code. (Pen.
Code � 653.2, subd. (b).)
Existing law provides that a person who has "suffered
harassment" may seek a temporary restraining order and an
injunction to prevent such harassment. "Harassment" is defined
thus:
[U]nlawful violence, a credible threat of violence, or
a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, or
harasses the person, and that serves no legitimate
purpose. The course of conduct must be such as would
cause a reasonable person to suffer substantial
emotional distress, and must actually cause
substantial emotional distress to the plaintiff.
(Code. Civ. Proc. � 527.6.)
Production, Distribution and Possession of Child Pornography and
Obscene Material
Existing law 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 or a felony, punishable by imprisonment in
the county jail up to one year or in the state prison for 16
months, 2 or 3 years and a fine not to exceed $10,000. (Pen.
Code � 311.1.)
Existing law specifies 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 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.
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(Pen. Code � 311.2, subd. (b).)
Existing law 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. If the person has a prior
conviction, the crime is a felony. (Pen. Code � 311.4, subd.
(a).)
Existing law 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. (Pen. Code � 311.4, subd. (b).)
Existing law authorizes issuance of a search warrant in
specified circumstances, usually involving evidence of a felony.
(Pen. Code � 1524.)
This bill provides that "any person who intentionally
distributes by any means the image of another identifiable
person, whose intimate body part or parts are either uncovered
or visible through less than fully opaque clothing or who is
engaged in a sexual act, without the consent of the [person]
depicted" is guilty of a misdemeanor, punishable by imprisonment
in a county jail for up to six months, a fine of up to $1,000,
or both.
This bill includes the following relevant definitions:
o "Intimate body part" means any portion of the
genitals, and in the case of a female, any portion of
the breasts below the top of the areola.
o "Sexual act" means sexual intercourse,
including genital, anal, or oral sex, or physical
contact with another person's intimate body part or
parts
The following conduct does not constitute commission of
this crime:
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o Distribution made in the course of reporting
an unlawful activity.
o Distribution "made in compliance with a
subpoena or other court order for use in a legal
proceeding."
o Distribution of an image captured in a public
or commercial setting where the person depicted
voluntarily exposed his or her intimate body part or
parts or voluntarily engaged in a sexual act.
o Distribution made in the course of a lawful
public proceeding.
This bill provides that the proper jurisdiction or venue -
county of trial - for prosecution of this offense includes the
following counties:
The county "in which the offense occurred,"
The county in which the victim resided "at the time the
offense was committed," or
The county in which the "intimate image was used for an
illegal purpose."
This bill provides that where multiple offenses of unauthorized
distribution of an intimate image, involving the same defendant
or defendants and the same intimate image "belonging to the one
person," or involving the same defendant or defendants in one
scheme or "substantially similar activity" occur in multiple
jurisdictions, any of those jurisdictions is a proper
jurisdiction for all of the offenses.
This bill provides that where a charge of unauthorized
distribution of an intimate image occurring in multiple
jurisdictions is filed in one county, the court shall hold a
hearing to determine in which county the case should proceed, or
where one or more counts should be severed and tried in another
jurisdiction. The district attorney in the county of filing
shall present that the district attorney in each county where
the case could be tried has agreed that the case should proceed
in the county of filing.
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This bill provides that where the action is filed in the county
of the victim's residence and there is no other basis for filing
in that jurisdiction, the court shall determine whether that
county, and not the county where the crime occurred or the image
was used for an illegal purpose, is the proper place for trial.
The court shall consider the rights of the parties, the access
of the parties to evidence, witness convenience and the
interests of justice.
This bill provides that an image distributed so as to violate
the ban on nonconsensual distribution of intimate body parts or
sexual activity shall be subject to court-ordered forfeiture and
destruction.
This bill provides that a computer or telecommunications device
used in the crime of nonconsensual distribution of an image of
an intimate body part or sexual conduct is subject to
forfeiture. The property shall be given to the holder of a
security interest, to the victim for restitution and
"compensatory damages," to the prosecuting agency, specified
governmental entities or charitable organizations. The property
may be sold and the proceeds distributed in a manner similar or
equivalent to distribution of the actual property.
This bill authorizes issuance of a warrant for any item that
tends to show that non-consensual distribution of another
person's intimate body part or sexual activity has occurred or
is occurring.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
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Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
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response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
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prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The distribution of a sexually explicit image an
individual has taken of another, identifiable person
while in a private setting without the subject's
consent is prohibited under current law. However, it
is silent as to images a person may have taken of
themselves and which were subsequently distributed by
others without his or her consent.
Current law also requires that the victim must suffer
serious emotional distress for the statute to be
enforceable. An unintended side effect of this
provision, victims have been reluctant to come forward
since they fear the embarrassment that may follow
testifying against their offender and making their
identities public in a criminal court setting.
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2. Vagueness and Related Issues
Vagueness and Overbreadth Generally
Both the United States and California Constitutions guarantee
that no person shall be deprived of life, liberty, or property
without due process of law. Due process requires "a reasonable
degree of certainty in legislation, especially in the criminal
law ?" (In re Newbern (1960) 53 Cal.2d
786, 792.) "[A] penal statute must define the criminal offense
with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement." (Kolender
v. Lawson (1983) 461 U.S. 352, 357.) A statute is overbroad
where it defines innocuous or innocent activity as criminal.
"The overbreadth doctrine provides that a governmental purpose
to control or prevent activities constitutionally subject to
state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms." (Williams v. Garcetti (1993) 5 Cal.4th 561, 577,
citation and internal quotation marks omitted.)
Many of the terms and provisions in this bill defining the new
or expanded crime of unauthorized distribution of an intimate
image could be challenged as vague and overbroad. Overall, it
appears that defining the offense largely by the nature of the
image - rather than the protected interest distribution the
image violates - is particularly problematic. Specific examples
of terms that could be challenged as vague or overbroad follow:
"Not Fully Opaque Clothing"
This bill, and existing law, make it a misdemeanor to, without
consent of the person depicted, electronically distribute an
image of another person's intimate body part - including where
the body part is covered by "less than fully opaque clothing."
Neither existing law nor the bill provides guidance or certainty
to determine what constitutes "less than fully opaque clothing."
The term appears to have no special meaning in the law, and
thus the term would be given its ordinary, dictionary meaning of
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"impenetrable to light" or "not translucent."<1> As using the
term not translucent would result in a confusing double
negative, the likely meaning would be anything not fully
impenetrable to light. Very many items of commonly worn women's
clothing are not fully impenetrable to light. Few fabrics -
blackout curtains for example - are fully impenetrable to light.
The less than fully opaque nature of clothing might not be
apparent until the person steps out into sunlight, or could
depend on the angle and source of ambient light. The term could
thus be challenged as vague and overbroad.
IS THE TERM "LESS THAN FULLY OPAQUE CLOTHING" VAGUE AND OVERLY
BROAD?
Application of the Defense that the Depicted Person "Voluntarily
Exposed" an Intimate Body Part or Engaged in a Sexual Act in a
Public or Commercial Setting
This bill provides that the crime at issue is not committed if
the defendant distributed an image in which the person depicted
voluntarily, in a public or commercial setting, exposed an
intimate body part or engaged in a sexual act. This concept
could also be challenged as vague and overbroad. Does the
person have to specifically intend to expose an intimate body
part? Does a person voluntarily expose an intimate body part
where she or he consciously does an act during which the body
part is exposed? How does someone "involuntarily" engage in a
sex act in a public place?
A more basic question is what constitutes a public place? For
example if a couple finds a place in Capitol Park that appears
to be hidden from view, but another person surreptitiously
follows the couple, and the couple engages in sexual activity,
would distribution of an image of the conduct not violate the
crime defined by this bill?
This provision raises other questions and produces other
anomalous results. For example, what is a commercial setting?
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<1> http://www.merriam-webster.com/dictionary/opaque,
http://dictionary.reference.com/browse/opaque.
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If a woman had boudoir photos taken to give to her husband or
boyfriend, or to preserve a record of her appearance, is that a
commercial setting or image, such that any distribution of those
images would not be covered by this bill?
Application of the Term "Sexual Act"
The bill provides that a "[s]exual act means sexual intercourse,
including genital, anal or oral sex, or physical contact with
another person's intimate body part or parts." This definition
may be difficult to comprehend and apply. It appears to use
"intercourse" as a very general term, not consistent with other
criminal law provisions. Sexual intercourse in other provisions
of law means penetration of a woman's vagina by a man's penis.
It would not generally be interpreted as meaning "genital, anal
or oral sex." The terms "genital, anal or oral sex" are
colloquial, vague and otherwise not found in statute.
California law refers to sodomy as the copulation of the anus of
one person by the penis of another and "oral copulation" as the
copulation of the mouth of one person with the genitals or anus
of another.
Further, it may not be adequately clear what constitutes
"physical contact with another person's intimate body part or
parts." Does this mean contact with bare skin? The phrase
could conceivably include physical contact with a woman's
breasts through a hug. It could include a photo of person
getting hit or kicked in the groin.
IS THE TERM "SEXUAL ACT" IN THIS BILL VAGUE OR AMBIGUOUS?
3. Forfeiture Provision is Overly Broad
The bill provides that an "image described" in the crime defined
by this bill is subject to forfeiture. The image described in
the crime provision is that of an intimate body part or sexual
act. However, the crime involves distributing the image without
consent. An image of an intimate body part of sexual act is not
illegal or contraband, per se. In contrast, the child
pornography images covered by the forfeiture provision in
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existing law are illegal per se. No one has a right to possess
an image of children engaged in sexual conduct, regardless of
whether he is convicted of a child pornography crime or not.
The forfeiture provision in this bill would allow prosecutors to
require a defendant to forfeit an image he had a legal right to
possess. It would appear that to be valid, the forfeiture
provision would need to apply to an image that was illegally
distributed within the meaning of the crime at issue.
4. The Bill does not include an Element that the Person Depicted
Suffer any Harm or Misfortune
Issue of Harm to the Victim Generally
A crime includes mens rea - a wrongful intent or state of mind -
and an actus reus - a wrongful act.<2> The crime defined in this
bill essentially requires little or no wrongful intent or
knowledge. Nor does it include a showing of harm to a victim.
The essence of the crime is distribution of sexually themed
images without consent. It thus appears the harm caused by the
offense is either the sexual nature of the image, per se, or the
distribution of the image without consent.
The use or control of an object without consent - in contrast
with some contact with the body of the victim - appears to
involve a property right of some kind - including, perhaps, an
intellectual property interest such as copyright. That is,
nature of the image is not harmful, but distribution harms the
victim's right to control use or distribution of the image.
Efforts to Obviate Testimony by or Identification of the Victim
From discussions with the author's office, it appears that an
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<2> Generally speaking, in most crimes, the harm is to an
individual victim, although a person is subject to criminal
punishment because an intentional or knowing harm against one
person is a moral violation against the people of a state. The
causing of financial or physical harm to another is also the
basis for a private, civil action by a plaintiff to obtain
individual compensation from the defendant who caused the harm.
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element of harm to the person depicted was excluded in an
attempt to avoid the need to have the victim testify. That goal
would be very difficult to achieve. The lack of consent to
distribution and an agreement that the image shall remain
private are elements of the crime that must be established
beyond a reasonable doubt in open court. (In re Winship (1970)
397 U.S. 358.)<3> A defendant has a 6th Amendment right to
confront the witnesses who would establish that the image was
distributed without consent, despite an agreement or
understanding that the image remain private. If the prosecutor
tried to establish lack of consent by a statement made by the
victim to a police officer or any other person, that statement
is inadmissible hearsay. If consent were somehow made an
affirmative defense, the defendant would call the victim as a
witness to establish the consent.
5. Comparison with Strict Liability Crimes
As the crime defined in the bill does not include an element of
wrongful intent or knowledge, the crime is similar to a strict
liability crime. (In re Jennings (2004) 34 Cal.4th 254.)
Strict liability crimes typically concern health and welfare
matters - contaminated food for example. Because strict
liability crimes include no element of intent, knowledge or even
criminal negligence, strict liability crimes are typically no
more than misdemeanors, often with relatively small fines and no
jail time. Strict liability crimes are said to be strictly
regulatory, and should not even damage the defendant's
reputation. (In re Jennings, supra, 34 Cal.4th at pp. 266-269.)
6. First Amendment Issues
Content Based Restrictions
If the harm in this crime is to society from the distribution of
sexual or sexually themed images, that raises significant First
Amendment issues. As such, the bill criminalizes a form of
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<3> Each element of a crime must be proved beyond a reasonable
doubt, or the defendant must be acquitted.
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expression, which is included within the definition of speech.
(Texas v. Johnson (1989) 491 U.S. 397.) "If there is a bedrock
principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or
disagreeable." (Id, at p. 414.)
Unless a particularly narrow exception applies, protection of
expression under the First Amendment is not limited to certain
subjects or ideas. A restriction on the "content" of
expression, as distinguished from the time, place and manner of
expressions is presumptively invalid. A content-based
restriction on expressive conduct is subject to "strict
scrutiny" and must promote a "compelling state interest" by the
"least restrictive means" to achieve the compelling interest.
(Sable Communications v. FCC (1989) 492 U.S. 115, 126.)
A content-based restriction on expression will be struck down as
invalid on its face if it prohibits clearly protected speech, in
addition to conduct that may validly be prohibited. Such a law
is said to be unconstitutionally "overbroad." (U.S. v. Stevens
(2010) 130 S.Ct. 1577, 1587.) Stevens struck down a federal
statute that criminalized the sale or possession of "depictions
of animal cruelty," in order to prohibit fetishistic "crush
videos" of the killing of animals for sexual gratification. The
Supreme Court found that the statute was overbroad in that it
might reach videos depicting hunting, arguably inhumane
treatment of livestock, or activities legal in some
jurisdictions but not others, such as cockfighting. (Id, at pp.
1588-1592.)
Nevertheless, some kinds of speech are not protected. These
include true threats and obscenity. However, in light of the
United States Supreme Court's decisions in cases involving
freedom of sexual speech on the Internet (Reno v. ACLU (1997)
521 U.S. 844) and the infamous crush videos obscenity case noted
above, it is highly unlikely that the Supreme Court would find
images depicting sexual acts and intimate body parts of adults
to be obscene.
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Some hybrid theory or principle establishing that prohibition of
non-consensual distribution of otherwise protected speech does
not violate the First Amendment would appear to be quite novel.
Full examination of the issues raised by such a theory would
require a great deal of study, research and debate, well beyond
that normally allotted to committee analysis of a bill.
Finally, the First Amendment most strongly prohibits laws that
limit or burden political speech. (Burson v. Freeman (1992) 504
U.S. 191; Perry Ed. Assn. v. Perry Local Educators' Assn. (1983)
460 U.S. 37, 45.) It appears that non-consensual distribution
of sexual images generally does not involve political speech.
However, there are very notable exceptions. The widely
distributed naked images of Anthony Weiner were largely
political speech, in the sense that the images supported
arguments that Weiner lacked good judgment and lacked veracity,
as he had denied taking and sending the images. However,
non-consensual distribution of naked images of Mr. Weiner would
appear to violate the crime defined in this bill. False
identities were used by activists to target Weiner.<4> Any
person prosecuted for such a crime would certainly mount a First
Amendment defense. The issues at play in such a case would be
complex. The courts could find that the First Amendment rights
of a person distributing such photos of a politician would
outweigh any expectation of privacy a politician would have as
to images shared with a person who is not a family member or
long-time associate.
Contrast with Violation of Privacy Rights
It does appear that non-consensual distribution of intimate
images can be prohibited or punished if that conduct violates
the constitutionally protected image of privacy. The California
Constitution (Art. I, �1) includes a specific right to privacy.
The United States Constitution includes an implicit right to
privacy in the penumbra of the explicit Bill of Rights.
---------------------------
<4>
http://www.nytimes.com/2011/06/18/nyregion/fake-identities-were-u
sed-on-twitter-to-get-information-on-weiner.html?ref=anthonydwein
er&_r=0.
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(Griswold v. Connecticut (1965) 381 U.S. 479.) Reliance on the
right of a person to enforce an agreement or understanding that
an intimate image remain private and not distributed would avoid
a host of constitutional and statutory construction issues
discussed above.
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7. Search Warrant Issues
This bill authorizes issuance of a search warrant to obtain
evidence of non-consensual distribution of an intimate image.
Most warrants are issued for the seizure of evidence of a
felony. The warrant provision in this bill raises the issue of
whether the interest in prosecuting people for distribution of
sexual images is comparable to the interest in prosecuting
felons. Another critical issue is whether evidence of this
crime would be reasonably available without a search warrant.
8. Forfeiture and Confiscation Issues
This bill authorizes forfeiture of equipment and property used
in non-consensual distribution of intimate images. The bill
also authorizes confiscation of offending images. How could one
determine if all of the images have been confiscated? One of
the major harms of cyber revenge is that the image is
uncontrollable.
In practice, computer forfeiture is an additional punishment,
not prevention of a future crime. The convicted defendant could
easily obtain another computer.
It appears that better results would flow from putting the
defendant on probation with the condition that he destroy all
images used in the crime and that he not obtain others. He
could be monitored on probation and his probation revoked if he
violated probation conditions.
COULD A DEFENDANT PLACED ON PROBATION BE MONITORED TO ENSURE
COMPLIANCE WITH ORDERS THAT HE DESTROY IMPROPERLY DISTRIBUTED
IMAGES AND THAT HE NOT USE ELECTRONIC EQUIPMENT IMROPERLY?
9. Suggested Amendments to Address the Issues Raised by this Bill
The following amendments would appear to define a crime that is
validly based on protection of a right to privacy under
California law, as opposed to an example of non-protected
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speech. Further, it appears to avoid many issues of vagueness
and overbreadth. The author's office has indicated the author
would accept the amendments:
(4) (A) Any person who intentionally distributes the
image of the intimate body part or parts of another
identifiable person, under circumstances where the
persons agree or understand that the image shall
remain private, and where the person distributing the
image knows or should know that distribution of the
image will cause serious emotional distress, and where
the person depicted suffers such distress.
(B) A person intentionally distributes an image where
he or she personally distributes the image, or
arranges, specifically requests, or intentionally
causes another person to distribute the image.
(C) As used in this paragraph, intimate body part
means any portion of the genitals, the anus, and in
the case of a female, also includes any portion of the
breasts below the top of the areola, that is either
uncovered or clearly visible through clothing.
(D) Nothing in this subdivision precludes punishment
under any section of law providing for greater
punishment.
(E) Where any person is granted probation for a
conviction under this subdivision, it shall be a
condition of probation that the person destroy any
physical image and permanently delete any digital
image involved in the offense or that could be the
basis of a prosecution under this subdivision if
distributed.
(F) The court may impose any reasonable condition of
probation limiting or restricting the person's use of
any device for the creation, storage or distribution
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of digital images.
SHOULD THESE AMENDMENTS BE ADOPTED?