Revenge Porn

Revenge porn is the electronic transmission or online publication of sexual content of somebody else without their consent. While the offense is a misdemeanor, it is punishable by severe penalties like fines and serving time, even at this level. Moreover, your conviction is a public record, accessible by the public. It could ruin your reputation, making it challenging to secure housing and employment. When charged with a crime, you are presumed innocent until the prosecutor proves your guilt. At Darwish Law, our lawyers in Santa Ana, CA can protect your rights and take time to learn about the alleged offense to develop a compelling legal defense.

Introducing Revenge Porn

Persons at least 18 years of age are free to make sexually explicit materials themselves or with somebody else for their own personal use. Regrettably, after a person sends out the video or photo, the receipt's device saves the material or they choose to keep the material. Revenge porn occurs when any sexually revealing or explicit videos or photos are posted without the permission of the person(s) in the material intending to cause the depicted individual(s) distress, humiliation, and/or embarrassment.

Examples of this crime include the following:

• A man took several bedroom photos of his fiancée. When he later called off their wedding, he posted the photographs to his Instagram and Facebook pages and tagged the ex-girlfriend.
• A teenage boy sends explicit pictures to a girl that he has a crush on. Then the girl sends the photographs to their mutual friends.
• A woman secretly records herself having sexual intercourse with her husband. When the woman catches the husband cheating, she posts the material to a pornographic website with his name, profession, and address.
• A woman sexted her girlfriend nude photos of herself. Following a heated argument, the girlfriend posts the naked images to several social media platforms along with her lover's name.

California Revenge Porn Law

Revenge porn has increasingly become a common violation of people's privacy, and there are also websites dedicated to revenge porn. The crime damages the victim's reputation and intimate relationship. It could constitute domestic violence when the defendant uses it to stop a partner/spouse from ending the relationship, obtaining child custody, and reporting abuse. Moreover, rapists widely use it to humiliate and deter victims from reporting the offense to the relevant authorities. Victims are also threatened with sexual assault, solicited for sexual conduct by strangers, and bullied due to perceived promiscuity. As a result, California lawmakers passed PC 647(j)(4).

PC 647(j)(4) makes it illegal to:

• Intentionally distribute images of intimate body parts or part of an identifiable person, or a photograph of the described person engaging in sexual intercourse, sexual penetration, masturbation, oral copulation, or sodomy,
• In which you understand or agree that the material should remain confidential,
• You know or ought to know that distributing the image will result in emotional distress to the individual depicted, and
• The other party suffered emotional distress.

Please note that the above definition constitutes the crime facts that the prosecutor must prove beyond a reasonable doubt before convicting the defendant.

You cannot be sentenced for violating this statute in either of the circumstances below:

• When reporting a crime
• When acting during a legal public proceeding, hearing, or trial
• When adhering to a court order or a subpoena for use in legal proceedings
• Excising your law enforcement responsibilities

You can also be convicted even if you or another person appears alongside the victim in the explicit content. You could be prosecuted for this crime provided the other party expected the material to remain confidential and did not give you permission to distribute it.

For better comprehension of revenge porn, here are definitions of key legal terms and phrases.

Intentional Distribution

You intentionally distribute a material when you distribute it or arrange, request, or deliberately cause somebody else to distribute the material.

It includes sending the image/video through social media, text message, e-mail, in person, or another electronic device.

Electronic communication devices can be web pages, websites, wireless devices/hybrid cellular, pagers, fax machines, video recorders, personal digital assistants, phones, and computers.

Images of the Intimate Body Part of an Identifiable Person

As far as this statute is concerned, an intimate body part can be any part of the anus, genitals, or female's breast below the top of the areola.

An identifiable person refers to the fact that there is a likelihood the people can identify the alleged victim.

California Assembly Bill 602

AB 602 regulates the distribution of deepfakes (manipulated images, visual, and audio depictions of a person that seem to be genuine).

Until now, California has not expressly controlled the distribution of altered or manipulated consent without needing proof of damages or fraud. The Election Code makes it illegal to distribute or produce campaign materials that include overlaid photos of candidates intending to create fake representations.

However, this statute does not address the advent of artificial intelligence and machine learning, which can produce deep fake audio and video files that look authentic. AB 602 bridges the gap.

The law will offer a private right of action against an individual who:

• Creates and deliberately reveals sexually explicit material if the person is aware or should have been aware that the depicted person did not consent
• Intentionally reveals sexually explicit material that the individual did not generate, if the person is aware the depicted person did not give permission.

Per this statute, it is not a defense that there existed a disclaimer in the sexually explicit video or image that indicates that:

• The inclusion of the depicted individual in the material was not authorized, or
• The depicted person did not engage in the development or formation of the material.

Also, altered pornography is not of newsworthy value mainly because the depicted person is a public figure.

A plaintiff who suffers harm due to the violation of AB 602 might recover any of the below:

• An amount equivalent to the monetary gain the defendant made from the disclosure, development, or creation of the sexually explicit materials
• Non-economic and economic damages caused by the disclosure of the sexually explicit materials, including emotional distress damages
• Punitive damages
• Reasonable attorney's costs and fees
• A maximum of $150,000 in statutory damages if the defendant acted with malice
• Other available relief, such as injunctive relief

Statutory Penalties for Breaking California Revenge Porn law

Revenge porn is a misdemeanor that carries the following penalties:

• A six-month county jail sentence
• $1,000 in fine

If the alleged victim is a minor or you have a previous revenge porn conviction, the court will enhance your penalties to:

• A year in county jail
• $2,000 in fine

A PC 647(j)(4) conviction neither has adverse immigration consequences nor affects your firearm rights.

Collateral Consequences of the Crime

Human beings are so used to freedom, and the thought of it being ceased or limited is incomprehensible. Incarceration is an evident and unapproachable statutory consequence of a conviction, but the most challenging and detrimental to move past are collateral effects. That is why you should have a knowledgeable defense attorney on your side to minimize or avoid your conviction consequences.

Common collateral consequences include:

Challenges Finding Employment or Promotion

Most employers today conduct background checks or require disclosure before hiring. While companies should not discriminate, knowledge of a criminal record at your workplace might make it challenging to form professional relationships and get promotions.

A Criminal Record

After your conviction, you have a criminal record. Whether online or on paper, the criminal record will always be there. It is also accessible to any person who runs the background check.

Fortunately, you can get the conviction expunged. Under PC 1203.4, expungement releases almost all the hardships related to the conviction. You might qualify for expungement if you completed either your jail term or probation.

Difficulties Applying for Education Opportunities

Many individuals with a criminal history attend school. Nevertheless, disclosing your offense on a program or school application form could be detrimental and embarrassing. You might qualify for the program, but your criminal background might taint your essays, grades, among other recommendations.

Moreover, if you fail to disclose your conviction when you should, the application might be rejected, or you might face disciplinary action.

Challenges Finding Housing

While landlords should not discriminate against you, most businesses are cautious of renting to persons with criminal records. If you are continuously denied housing, your options for cost-effective and safe apartments are limited, affecting your family's emotional or physical wellbeing.

Obtaining Professional Licenses

The purpose of acquiring a professional license is to prove that you are of good character and have integrity. It also means that you have nothing in your life that shows that you cannot uphold your profession's ethics. A conviction might prove otherwise.

Consequently, you might be required to provide more proof that you can maintain your standards regardless of your past.

Defenses for Revenge Porn

The complicated nature of revenge porn law makes it crucial for you to engage a skilled lawyer to fight the charges against you. Your defense attorney has an understanding of this law and its legal defenses. They will take time to analyze and discuss your case and then determine the most viable defense.

Some of the defenses that lawyers at Darwish Law have successfully used to defend PC 647(j)(4) charges include the following:

• The defendant did not distribute the material intentionally-- Before convicting you of California revenge porn, the prosecutor should verify that you deliberately distributed the materials. Your experienced attorney should contend that you shared these materials mistakenly.
• The depicted individual in the photos is not identifiable-- If the material in question does not show who is portrayed in the material, you cannot be found guilty. For instance, if you crop a photo and eliminate all identifying features of the individual in the image before sharing, you cannot be convicted of PC 647(j)(4). However, a person's face is not the only identifying feature. An individual can be identified using birthmarks, tattoos, and personal property found in the image's background.
• You did not intend to cause the victim emotional distress-- Remember, you can only be convicted of this law if you knew or ought to have been aware that the distribution of the image would cause the other party severe emotional distress. That means it is a defense for you to argue that you were not aware. An example is posting a prank and believing the other party will find it funny.
• Consent-- It is always an effective legal defense for you to prove that the victim consented to distributing their explicit photographs or videos.

How PC 647(j)(4) is Related to Domestic Violence

Domestic violence and revenge porn are closely related because social media is currently used to harass persons with close family ties. The Family Violence Protection Act defines domestic violence as negative conduct towards a person you share an intimate relationship with. The conduct could be coercive, physically abusive, economically abusive, or sexually abusive.

Additional domestic violence charges involve actions that can dominate or control somebody else, making them believe that their safety or wellbeing is at risk. Revenge porn is considered a domestic violence act because it could cause the victim who had a relationship with the accused embarrassment and emotional distress.

Evidence Used When Charging Revenge Porn Defendants

In revenge porn cases, the prosecutor can use electronic evidence such as audio or video, information on where the accuser found the explicit material, and details on who posted it in order to prove your guilt. There could also be accompanying proof such as calls, text messages, and emails to verify the accused's identity.

Nevertheless, showing the explicit material is not adequate to establish that the defendant published the content. How can you prove the alleged victim did not share the video/photo themselves or gave consent to share the content?

That is why it is essential to hire a skilled attorney. Your lawyer will analyze the case facts and determine whether they could be admissible in court. They will also search for an email chain. The email chain can show whether the individual who published the material was given the material. If you do not have the photos, you cannot be found guilty. Additionally, the lawyer can engage an expert witness who will study forensic proof and determine whether there are authenticity issues, such as:

• False accusations
• Challenges in understanding the message's source

Other evidence used includes:

• The alleged victim's statement that they did not consent to the crime
• Statement by witnesses who discovered or saw the explicit content
• Admission of guilt

California Judicial Process

The judicial process can look like a network of bureaucracy that is challenging to navigate. Court rules and laws can be confusing and complicated for an individual unfamiliar with the technicalities. The section below outlines various phases of the judicial process.

Investigations

Investigations involve interviewing witnesses and gathering evidence to understand the facts surrounding the alleged crime. The aim is to determine whether you committed the crime.

The police might also conduct a search of your electronic devices among other property and question you. Even before the police arrest you, you could benefit from legal representation. The lawyer will ensure that your constitutional rights are protected during the search and interrogation.

Arrest and Filing Charges

If law enforcement finds proof against you during the investigation, you will be arrested (probable cause).

After your arrest, the prosecutor will choose whether to bring a criminal charge against you. If no charge is filed, you will be released from detention. If the prosecution thinks there is proof to prosecute you, you can be held in police custody or released on bail.

Arraignment

The arraignment is the initial court hearing after your arrest. During the arraignment, the judge will advise you of your rights and charges against you, and then appoint a public defender if you cannot afford to hire a lawyer.

Moreover, the defendant can enter a plea to the charge. It is not wise that the defendant enters a plea until they speak with their legal counsel and understand various plea options, including:

• Not guilty
• No contest
• Guilty

The lawyer can also recommend the type of plea you ought to enter based on your case circumstances.

Bail

The judge could handle bail at the arraignment or at a bail hearing. Reliant on the circumstances of the charge, the court might set bail, release you on your own recognizance, or deny bail.

Should the judge set the bail amount, you must post the entire bail amount or contact a bail bondsman to be released. If bail is denied, you will remain in detention throughout your criminal justice process.

Pretrial Process

Both the prosecutor and your criminal defense lawyer will share proof in a process called discovery. Every side should build their case.

This is also when every side brings motions addressing different legal matters that could affect how the case proceeds. Admissibility of evidence is a critical issue addressed. If the prosecution plans to use the proof acquired by the search, your lawyer can contest whether the police lawfully conducted the search.

Trial

During the trial, both sides present evidence, testimony, and arguments to the jury or judge. While you are entitled to a trial by jury, you can waive this right and elect to have the judge determine your guilt or innocence.

During the trial, the prosecutor should establish your guilt beyond a reasonable doubt. Otherwise, the judge or jury will return a not guilty verdict.

Sentencing

When the jury rules a guilty verdict, the judge will schedule your sentencing hearing date. The judge will listen to your defense attorney and prosecutor's recommendations regarding the suitable sentence founded on your charges' circumstances.

Appeals

When found guilty, you are entitled to appeal the verdict. Nevertheless, you must have grounds for appealing. These grounds for the appeal involve flaws like:

• Mistakes of law
• Absence of adequate evidence to support the verdict

Find Orange County Criminal Lawyer Near Me

California PC 647(j)(4) carries severe penalties. A conviction could have detrimental consequences on your freedom, career, family, and reputation. If you have been accused of this crime in Santa Ana, CA do not hesitate to contact a skilled legal advocate. Darwish Law has had many years of experience and understands the burden of proof and the available negotiation options. We can stand by you throughout the case. Contact our legal office today at 714-887-4810 to schedule your initial consultation.