BILL ANALYSIS �
SB 1255
Page 1
Date of Hearing: June 24, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1255 (Canella) - As Amended: May 6, 2014
As Proposed to be Amended in Committee
SUMMARY : Expands the elements of the misdemeanor offense which
prohibits the unlawful distribution of a consensually-taken
image of an identifiable person's intimate body parts.
Specifically, this bill :
1)Makes it a misdemeanor to intentionally and without consent
distribute an image of another identifiable person's intimate
body parts or depicting the person engaged in one of several
specified sexual acts, when the person distributing the image
knows, or should know, that its distribution will cause
serious emotional distress, and where the person depicted
suffers that distress.
2)Provides that a person intentionally distributes an image when
he or she personally distributes the image, or arranges,
specifically requests, or intentionally causes another person
to distribute it.
3)Defines "intimate body part" as "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."
4)Makes distribution of the image exempt from prosecution if:
a) It is made in the course of reporting unlawful activity;
b) It is made in compliance with a subpoena or other court
order for use in a legal proceeding; or,
c) It is made in the course of a lawful public proceeding.
EXISTING LAW :
SB 1255
Page 2
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. (Pen. Code, � 647, subd. (j)(4)(A).)
2)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.
(Pen. Code, � 647, subd. (j)(1).)
3)Makes it a misdemeanor for any person to use a device to
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. (Pen. Code, � 647,
subd. (j)(2).)
4)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. (Pen. Code, � 647, subd. (j)(3).)
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
SB 1255
Page 3
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).)
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
state prison, and/or a fine not to exceed $10,000. (Pen.
Code, � 311.1, subd. (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. (Pen. Code, � 311.2, subd. (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. (Pen. Code, � 311.4, subd.
(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. (Pen. Code, � 311.4, subd. (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. (Pen. Code, � 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
SB 1255
Page 4
literary, artistic, political, or scientific value." (Pen.
Code, � 311, subd. (a).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 1255 seeks
to strengthen the existing privacy law pertaining to revenge
porn by extending the protections offered by last year's SB
255 to include images a person takes of themselves.
"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 only addresses half the problem.
"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.
"SB 1255 would prohibit the distribution of sexually explicit
images taken in a private setting without the consent of the
depicted person regardless of who created the image."
2)Background : "Revenge porn" has received national attention
in recent years, with legislation being proposed throughout
the various states to address this unfortunate phenomenon.
The National Conference of State Legislatures (NCSL),
describes "revenge porn" as "the posting of nude or sexually
explicit photographs or videos of people online without their
consent, even if the photograph itself was taken with consent.
A spurned spouse, girlfriend or boyfriend may get revenge by
uploading photographs to websites, many of which are set up
specifically for these kinds of photos or videos. The
victim's name, address and links to social media profiles are
often included with the images, and some websites charge a fee
to have the materials removed." (See NCSL, State "Revenge
Porn" Legislation
.)
SB 1255
Page 5
3)Expansion of the Crime : Last year the Legislature passed SB
255 (Canella), Chapter 466, which created a new misdemeanor
for the distribution of an image of an identifiable person's
intimate body parts which had been taken with an understanding
that the image would remain private. Specifically, the crime
requires: (1) that defendant be the person who takes the
photograph; (2) that the parties had an agreement or
understanding that the image would remain private; (3) that
the distribution was made with the intent to cause serious
emotional distress, and, (4) that the person depicted does in
fact suffer serious emotional distress.
Of particular significance was that the crime does not apply to
a "selfie," a photograph taken of oneself. This bill deletes
the requirement that the defendant be the one who photographed
or recorded the image, so that the crime applies regardless of
who photographed or recorded the image.
In addition, this bill deletes the requirement that the
defendant intended to cause serious emotional distress.
Instead, what is now required is that the defendant know, or
should have known, that distribution of the image would cause
serious emotional distress. As a result, the specific intent
requirement currently in statute is deleted.
A specific intent crime requires the intent to cause the
resulting harm. A general intent crime involves only the
intent to commit the act, which causes the harm. (People v.
Davis (1995) 10 Cal.4th 463, 518-519, fn. 15.)
4)Argument in Support : According to the California Partnership
to End Domestic Violence , "Revenge porn is a new phenomenon
whereby intimate photos or video, coupled with personally
identifying information, are used as a way to humiliate or
harass. Most commonly, these pictures were taken during the
course of a romantic relationship and were meant to be kept
private, however, in some cases the images were acquired
without the consent of the subject. No matter the origin,
victims of revenge porn face embarrassment that seemingly has
no end and has led to dire consequences, such as alienation,
loss of employment, and even suicide.
"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
SB 1255
Page 6
revenge and exert power over the victim, an abuser will post
extremely personal pictures of a sexually charged nature.
"Current law, enacted by SB 255 (2013), generally prohibits the
distribution of the sexually explicit image an individual has
taken of another person while in a private setting without the
subject's consent. This bill would additionally prohibit the
distribution of sexually explicit images without the consent
of the depicted person regardless of who created the image."
5)Argument in Opposition : According to the American Civil
Liberties Union , "This legislation expands the new crime
enacted just last year and in effect only six months regarding
distribution of nude photos. That statute, as codified in
Penal Code section 647, balanced the legitimate privacy
interest and free speech rights implicated in these cases.
Current law includes four key elements necessary to
criminalize this activity: it requires that the defendant had
malicious intent; that his or her action caused actual harm;
that he or she knowingly acted without consent; and, that the
victim had an expectation of privacy.
"SB 1255, as amended in the Senate, eliminates the requirement
that the defendant act with malicious intent. We perceive
little justification to eliminate this essential mens rea
component and strongly urge that it be reinstated."
6)Related Legislation : AB 2643 (Wieckowski) creates a private
right of action against a person who intentionally or
recklessly distributes a sexually explicit photograph or other
image or recording of another person, without the consent of
that person. AB 2643 is pending in the Senate Judiciary
Committee.
7)Prior Legislation :
a) SB 255 (Cannella), Chapter 466, Statutes of 2013,
created a new misdemeanor for the distribution of an image
of an identifiable person's intimate body parts which had
been taken with an understanding that the image would
remain private.
b) AB 321 (Hern�ndez), of the 2011-12 Legislative Session,
required additional penalties be imposed on a minor
adjudicated of "sexting." AB 321 was held on the Assembly
SB 1255
Page 7
Appropriations Committee's Suspense File.
c) 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.
d) 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership to End Domestic Violence
California Police Chiefs Association
California State Sheriffs' Association
Citizens for Law and Order
Crime Victims Action Alliance
Crime Victims United of California
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744