Non-Consensual Pornography in D.C.

Commonly referred to as “revenge porn,” the publication/disclosure of sexual images against the will of the person depicted in the images is now a criminal offense in D.C. The provisions were enacted through the “Criminalization of Non-Consensual Pornography Act of 2014.”

In enacting the statute, D.C. City Council defined “non-consensual pornography” as the “forced transformation of a private sexual image into sexual entertainment for strangers. It is also the distribution of a private sexual image to cause harm to the person depicted.” Specifically, non-consensual pornography “occurs when an actor shares a sexually explicit photograph or video of another person without that person’s permission, with another audience of one or more individuals, whether by electronic means or otherwise, or potentially the whole world by posting the images or video to the Internet.”

There are currently three forms of the offense. In order to secure a conviction for the Unlawful Disclosure of a Sexual Image, a misdemeanor offense punishable by up to 180 days of incarceration and/or a fine of $1,000, the government must prove that (1) the defendant knowingly disclosed one or more sexual images of another person, (2) the person depicted was either identified or identifiable, (3) the person depicted did not consent to the disclosure, (4) there was an agreement or understanding between the defendant and person depicted that the sexual image would not be disclosed, and (5) the defendant disclosed the sexual image with the intent to harm the person depicted or to receive financial gain. D.C. Code § 22-3052. Disclosure” is defined as the transfer or exhibit of the image to 5 or fewer persons.

If the sexual image is shared with 6 or more persons through “publication,” either directly or by uploading to the Internet, then the offense is First-Degree Unlawful Publication of a Sexual Image. This is a felony offense punishable by up to 3 years in prison and/or a fine of $12,500. In order to secure a conviction for this offense, the government must prove beyond a reasonable doubt that (1) the defendant knowingly published one or more sexual images of another person, (2) the person depicted was either identified or identifiable, (3) the person depicted did not consent to the disclosure or publication of the image, (4) there was an agreement or understanding between the defendant and person depicted that the sexual image would not be disclosed or published, and (5) the defendant published the sexual image with the intent to harm the person depicted or to receive financial gain. D.C. Code § 22-3053.

Finally, a third party who comes into possession of the sexual image and who “publishes” it (i.e., shares it with 6 or more people) can be charged with Second Degree Unlawful Publication of a Sexual Image. This is a misdemeanor offense punishable by up to 180 days in jail and/or a fine of $1,000. In order to prove this offense, the government must establish that (1) the defendant knowingly published a sexual image that was obtained through a third party, (2) the person depicted was either identified or identifiable, (3) the person depicted did not consent to the disclosure or publication of the image, (4) the defendant published the sexual image with conscious disregard that the sexual image was obtained as a result of a previous disclosure or publication of the sexual image made with an intent to harm the person depicted or to receive financial gain. D.C. Code § 22-3054.

“Private area” is defined by the statute as the “genitals, anus, or pubic area of a person, or the nipple of a developed breast, including the breast of a transgender female.”  D.C. Code § 22-3051(4).   “Sexual image” means “a photograph, video, or other visual recording of an unclothed private area or of sexual conduct.” D.C. Code § 22-3051(7). “Sexual conduct” means (1) actual or simulated sexual intercourse between the penis and the vulva, anus, or mouth, between the mouth and the vulva or anus, or between an artificial sexual organ or other object or instrument used in the manner of an artificial sexual organ and the anus or vulva; (2) masturbation, (3) sexual bestiality, (4) sadomasochistic sexual activity for the purpose of sexual stimulation, or (5) lewd exhibition of the genitals.  D.C. Code § 22-3101(5).