OTLA Trial Lawyer Winter 2022

43 Trial Lawyer • Winter 2022 By Jacqueline Swanson OTLA Guardian Jane rises late from a restless sleep. She recently broke up with her long-term boyfriend, John, and spent the last several weeks fielding his angry messages and calls. Unwilling to engage in further unfruitful rehashing of their failed relationship, she blocked him on her phone and social media. When she awakens to find hundreds of notifications lighting up her screen, she initially assumes John has figured out some way to bypass her block. Scrolling through the messages, she realizes with dawning horror that John has posted and disseminated nude and intimate photographs of her online. Jane is a victim of revenge pornography, and she is not alone. Revenge porn —also known as nonconsensual pornography or image-based sexual abuse — is the distribution of sexually explicit photos or videos of another without their consent, often utilized as a means of humiliating, controlling or otherwise enacting “revenge” upon an erstwhile (and frequently female) romantic partner. Image-based sexual abuse is also used by perpetrators of domestic violence and sexual assault, stalking and harassment, as well as in threats and bullying by peers and others known to the victim. The images at issue may have been created with consent and intended for a private or confidential relationship, or obtained without consent, such as by secret recording, “upskirting” or “downblousing” in public spaces, or forcing someone to send sexual images (known as “coercive sexting”). Although there is a dearth of comprehensive studies regarding the incidence and prevalence of nonconsensual pornography in the United States, recent research suggests an alarming number of individuals are victimized by this behavior every year. Survivors of image-based sexual abuse experience high levels of emotional distress and a wide array of detrimental effects, ranging from reputational harm to anxiety, depression and even suicide. Further, revenge porn inflicts damage the first time it is shared and the harm is potentially lifelong, given that one of the biggest difficulties of combatting revenge pornography is the problem of removal. Even if an image is taken down from one site, there is no way to guarantee it hasn’t been copied, shared, screenshotted, stored on a cache or moved to some other site. Abetted by the rise in digital communication and the growing popularity of revenge porn web sites worldwide, nonconsensual pornography is a permanent fixture in our society requiring redress in the law. While this truth may appear axiomatic, the reality is rarely simple. Criminalization of revenge porn Prior to June 11, 2015, John’s conduct in the scenario above would not have been criminal under Oregon law. Had Jane gone to police, she likely would have been told there was nothing that could be done or would have been blamed for allowing John to possess nude images of her in the first place. Fortunately for Jane, in 2015, the Oregon Legislature passed SB 188, enacting ORS 163.472 and establishing the crime of unlawful dissemination of an intimate image. The crime has four elements. A person commits the crime of unlawful dissemination of an intimate image if: (1) The person, with the intent to harass, humiliate or injure another person, knowingly causes to be disclosed an identifiable image of the other person whose intimate parts are visible or who is engaged in sexual conduct; (2) The person knows or reasonably should have Jacqueline Swanson L E G I S L A T I V E U P D A T E S See Revenge Porn 44 Revenge Porn