Imagine you are at the beach in Ocean City, Maryland with your wife and children. It’s a beautiful summer day and you take a “selfie” of yourself and your family to have a memory of the day. There are other beachgoers in the background of your picture. You decide that the picture looks so good you post it on your Facebook page. The next thing you know, you are being served with papers and being accused of revenge porn by a woman who is in the background of your picture wearing a string bikini that reveals too much of her body.
Would you know how to protect yourself from the allegation of revenge porn? Were you even aware that crime revenge porn existed in Maryland and that it can be the basis for both criminal and civil actions?
In 2014, the Maryland legislature enacted House Bill 43, which created a criminal statute prohibiting revenge porn in the State of Maryland. Md. Criminal Law Code Ann. § 3-809 prohibits a person from knowingly distributing “a visual representation of another identifiable person that displays the other person with his or her intimate parts exposed or while engaged in an act of sexual activity. “ Revenge porn is a crime in Maryland and a person found guilty of this misdemeanor could face up to two years in prison and a fine of up to $5,000.00. In addition to the criminal law, an allegation of revenge porn can be pursued civilly. Under current law, an allegation of revenge porn can also serve as the basis for a protective order or a peace order (restraining order). With these statutes, the Legislature has acknowledged that intentionally publishing private photographic images of a sexual nature without the other person’s consent can cause real psychological, emotional and even financial harm to the person.
Violation of the statute involves more than just posting a picture on the Internet or other public domain. The posting must be intentional. The person who posted it must have had the intent to cause serious distress or some other harm to be in violation of the statute. The posting must reveal the identity of the person, which means their face must be included in the depiction. And there must have been some expectation of privacy by the person in the picture. In the Facebook posting example, the complaining witness would fail on at least two of these elements. The photo was taken of a person and his family on a public beach. Anyone else on the public beach would have no expectation of privacy and the man’s intention in posting the picture was to show his friends and other followers what a nice day his family had in Ocean City. The people in the background were peripheral to the picture and, even if one can see the complaining witness’s face and butt in the photo, her claim would fail on the other elements.
The person complaining about her posting would not win in court. However, Maryland Courts deal with revenge porn cases with less innocent facts in both criminal and civil cases. The typical scenario involves a perpetrator who is angry about the end of a relationship and who, without consent and for the purpose of revenge, posts intimate pictures of the other party which often were taken with that party’s consent during the relationship. A person who becomes the victim of revenge porn can suffer great emotional, psychological and even financial harm. A person accused of revenge porn can, if the behavior is proven, face civil and even criminal penalties, to include imprisonment. Revenge porn is a serious matter. Whether you are the victim or the accused, it is important to know your rights and how your situation can be resolved based on the law currently in Maryland’s criminal and civil statutes.