Caifornia's "Revenge Porn" Law
Penal Code 647(j)(4) PC

In 2013, the California legislature added “revenge porn”—known more technically as “nonconsensual pornography”—to the list of California computer crimes.1

As a result, revenge porn is now a crime under California Penal Code 647(j)(4) PC.2

Revenge porn is similar to but distinct from the related crime of “invasion of privacy.” With invasion of privacy, the defendant secretly records sexual images of another person, without his/her knowledge or consent.3

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"Revenge porn" is one of a growing list of cyber-harassment crimes in California.

With revenge porn, in contrast, the “victim” initially knows about and consents to the recording of sexual images of him/her, with the understanding that the images will remain private—but then the defendant distributes those images (usually on the internet) without his/her consent.4

Like the crime of Penal Code 653.2 PC indirect electronic harassment, revenge porn is a relatively new computer offense that is often charged in situations where a romantic relationship has gone sour.

The legal definition of nonconsensual pornography

Under Penal Code 647(j)(4) PC, the legal definition of revenge porn/nonconsensual pornography is as follows:

  1. You have an image of the intimate body part of another identifiable person, or an image of that person engaged in sexual intercourse, sodomy, oral copulation or masturbation;
  2. You intentionally distribute that image;
  3. There was an understanding between you and that person that the image would remain private;
  4. You know or should know that the distribution of the image will cause the person serious emotional distress; and
  5. The person depicted suffers serious emotional distress.5
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Intentionally distributing sexual images of someone else is the basic legal definition of revenge porn.

You “intentionally distribute” an image if you either personally distribute it, or arrange, specifically request, or intentionally cause another person to distribute it.6

Example: Roger's girlfriend Maria leaves him for Vlad, a co-worker of hers. Roger is furious.

Roger has numerous digital photos of Maria undressed and engaged in sexual acts. He would like to distribute these to all the people she and Vlad work with in order to get revenge on them.

Roger doesn't have access to the email addresses of all Maria and Vlad's coworkers. But he convinces Ella, another co-worker of theirs, to post the pictures on the company's internal website.

Roger is guilty of revenge porn for arranging for Ella to distribute the sexual pictures of Maria for him.

For purposes of Penal Code 647(j)(4) PC, an “intimate body part” means any portion of the genitals, the anus and (in the case of a female) any portion of the breasts below the top of the areola, either uncovered or clearly visible through clothing.7

Example: Arnold's girlfriend Joan breaks up with him.

So Arnold posts a very unflattering picture of her in a bathing suit on his Facebook page, with the following caption: “This fat hag just dumped me, but I think I can do better!”

Arnold is not guilty of revenge porn even though he distributed a demeaning picture of Joan—because the picture did not contain images of Joan's intimate body parts or Joan engaged in a sexual act.

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You cannot be convicted of PC 647(j)(4) revenge porn for submitting images in response to a subpoena.

California Penal Code 647(j)(4) PC does specify that you are NOT guilty of revenge porn if you distribute images under any of the following circumstances:

  1. In the course of reporting an unlawful activity;
  2. In compliance with a subpoena or other court order for use in a legal proceeding; or
  3. In the course of a lawful public proceeding.8

Example: Kathleen is a college student. After a drunken fraternity party, she is “date raped” by a fraternity member named Doug.

Kathleen reports Doug's behavior to the administration of her college. She managed to snap a few pictures of him on her cell phone during the sexual assault, some of which show him naked, and she emails these to members of the administrative board as part of her report.

Kathleen is not guilty under PC 647(j)(4) because she was distributing the images of Doug in the course of reporting an unlawful activity.

California revenge porn penalties

PC 647(j)(4) makes revenge porn a misdemeanor in California law.9

The basic penalties for a first offense are:

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The penalties for revenge porn increase if this is not your first offense or the victim is a minor.

But the penalties increase to up to one (1) year in county jail, and/or a fine of up to two thousand dollars ($2,000), if either of the following is true:

  1. You have one (1) or more prior convictions for revenge porn or Penal Code 647 invasion of privacy; or
  2. The victim of the revenge porn was a minor (in which case you may also need to worry about charges under California's child pornography laws).11
Legal defenses against Penal Code 647(j)(4) charges

According to Ventura criminal defense attorney John Murray12:

“So-called ‘revenge porn laws' are a very new phenomenon, both in California and nationwide. And we are all used to hearing news about the release of the latest ‘celebrity sex tape.' As a result, many people are shocked to find out that the behavior covered by Penal Code 647(j)(4) is a crime at all.”

Even though revenge porn is a misdemeanor, it can be a devastating addition to the permanent record of a young person who might be applying to college, graduate school or a new job. It can also lead to professional discipline for people in a number of occupations.

Our criminal defense attorneys are familiar with the elements of the crime of revenge porn and the common legal defenses that can help you beat these charges.

For example, you might argue that you did not “intentionally distribute” a compromising image. You may have posted or emailed the wrong image, thinking it was one that did not have sexual content.

You may also argue that you did not intend to cause emotional distress to the “victim.” Depending on the circumstances and your relationship with him/her, you may have reasonably believed that distributing the image would be a harmless joke.

Call us for help…
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For questions about the crime of Penal Code 647(j)(4) PC revenge porn/nonconsensual pornography, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on the crime of “electronic bullying” in Nevada, please see our page on “electronic bullying” in Nevada.

Legal References:


1 California Legislative Council's Digest: SB 255, introduced Feb. 13, 2013, amended May 7, 2013.

2 Penal Code 647 PC – California's “revenge porn” law. (“Except as provided in subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . .. (j) . . . (4)(A) Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (B) A person intentionally distributes an image described in subparagraph (A) when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image. (C) As used in this paragraph, “intimate body part” means any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing. (D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies: (i) The distribution is made in the course of reporting an unlawful activity. (ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding. (iii) The distribution is made in the course of a lawful public proceeding. (5) This subdivision shall not preclude punishment under any section of law providing for greater punishment. (l)(1) A second or subsequent violation of subdivision (j) is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment. (2) If the victim of a violation of subdivision (j) was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment.”)

3 See Penal Code 647 PC – Invasion of privacy. (“(j)(1) Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments. (2) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. (3)(A) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.”)

4 Penal Code 647 PC – California's “revenge porn” law, endnote 2 above.

5 Same.

6 Same.

7 Same.

8 Same.

9 Same.

10 Same.

See also Penal Code 19 PC – Punishment for misdemeanor [such as revenge porn/nonconsensual pornography]; punishment not otherwise prescribed. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)

11 Penal Code 647 PC – California's “revenge porn” law, endnote 2 above.

12 Ventura criminal defense attorney John Murray has a stellar reputation for criminal and DUI defense throughout Los Angeles and Ventura counties. He works closely with his clients and carefully chosen private investigators to build the best defense in cases ranging from misdemeanor revenge porn to gross vehicular manslaughter.

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