So you have these pictures of your ex . . . you know the ones.  Now that the good times are over, you’re wondering what you can do with them.  It would be so satisfying to indulge that basic human urge for revenge by forwarding them to a few choice associates.  Or maybe even posting them online for the benefit of a larger audience. The short legal answer is that your best choice is to suck it up and keep them to yourself.

This spring, Utah became one of thirteen states to enact a “Revenge Porn” law.  The law’s official name is the Distribution of Intimate Images Act.  You are breaking this law if you intentionally distribute an intimate image of someone (example: your ex) to a third party knowing that you don’t have the person in the picture’s consent.  And you have to do it with the intention of causing emotional distress or harm (example: revenge).    Incidentally, if the person in the picture is under 18 you have committed a whole different crime (pro tip: never do this).

Obviously this law applies if you happened to have snapped the explicit pictures without the other person’s knowledge (And, once again, if this applies to you, you have committed several additional crimes).  But it applies equally if the pictures were taken consensually.  You might think that if someone sends you a picture of their own free will you are then the owner of that picture and free to do with it whatever you want.   Not so.  Noncommercial intimate images come with an expectation of privacy, meaning that the giver has the right to expect that they won’t be misused.   The most commonly cited comparison is that when you give a waiter your credit card to pay for your meal, you don’t authorize him to use it to take his family to Fiji.

Don’t think you can hide behind the First Amendment either.  Unlike regular pornography, there is no freedom of speech protection for Revenge Porn.  It goes back to the consent issue.  In general, your constitutional rights end when they start infringing on someone else’s.  For example, freedom of religion is also protected by the First Amendment, but that doesn’t give you the right to wage jihad.

Critics of the Revenge Porn law think that it doesn’t go far enough because of the requirement that you must intend to cause emotional distress or harm.  It probably can’t touch people who operate revenge porn websites for money.  It also probably wouldn’t apply to the guys who hacked celebrities’ cloud accounts and tweeted their scandalous photos last summer.  These scenarios, however, are probably already covered under the federal laws that regulate the adult film industry.  These laws require that everyone who participates in making porn is consenting and over the age of 18.  Producers of all adult media, including websites, are required to keep files containing the IDs of everyone involved and these files are actually monitored regularly.

Distributing an intimate image is a class A misdemeanor.  For a second criminal episode or any others thereafter it is a third degree felony.  A single criminal episode means “all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective.” See https://le.utah.gov/code/TITLE76/htm/76_01_040100.htm.  So one text message sent to multiple people qualifies as a single episode.  These are pretty stiff penalties.  A conviction for a class A misdemeanor can get you jail time.  For a third degree felony you could even end up in prison.  There are numerous other consequences including fines and a criminal record that can follow you for the rest of your life.  A conviction for Revenge Porn can be especially problematic if you and your ex are in the process of getting divorced.  Judges making custody decisions don’t like criminal convictions generally and tend to see this specific kind of conviction as an indication that you are not going to do well holding you your end of a co-parenting relationship.  And depending on the circumstances, you could also be charged with distribution of pornography and electronic communications harassment.

If you have questions about the Revenge Porn law, you can contact us.  You can read Utah’s Distribution of an Intimate Image law for yourself at https://le.utah.gov/xcode/Title76/Chapter5b/76-5b-S203.html.