§ 647j4 PC – California “Revenge Porn” Laws & Penalties

In California, “revenge porn” is a crime under Penal Code § 647(j)(4) if you

1. post sexually explicit images or videos of someone
2. without their consent
3. when doing so causes serious emotional distress.

A conviction is punishable by

• up to 6 months in jail and
• a fine of up to $1,000.

The language of 647(j)(4) PC states that:

(A) (i) A person who intentionally distributes or causes to be distributed 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, when subclauses (I) to (III), inclusive, are all true:

(I) The person distributing the image knows or should know that the distribution of the image will cause serious emotional distress.

(II) The person depicted suffers serious emotional distress.

(III) One of the following has occurred:

(ia) The person depicted in the image and the person distributing the image had agreed or had an understanding that the image shall remain private.

(ib) The image was knowingly recorded, captured, or otherwise obtained by the person distributing the image without the authorization of the person depicted, and the image was recorded or captured under circumstances in which the person depicted had a reasonable expectation of privacy.

(ic) The image is knowingly obtained by the person distributing the image by exceeding authorized access from the property, accounts, messages, files, or resources of the person depicted.

(ii) A person who intentionally creates and distributes or causes to be distributed any photo realistic image, digital image, electronic image, computer image, computer-generated image, or other pictorial representation of an 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 that was created in a manner that would cause a reasonable person to believe the image is an authentic image of the person depicted, under circumstances in which 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. This clause shall not apply to a person who was under 18 years of age at the time the person committed the offense.

Examples

• taking naked pictures of an ex-lover/partner, and after the breakup, posting the images on Facebook.
• recording a person in a sexual act and then uploading the video on an internet sex site.
• taking upskirt photographs of a woman (with her consent) with a smartphone, and then posting them on social media.

Our California criminal defense attorneys will explain the following in this article:

• 1. Elements of the Crime
• 2. Defenses
• 3. Penalties
• 4. Related Offenses
• 5. Lawsuits for Fake Revenge Porn
• Additional Reading

Penal Code 647j4 PC is the California revenge porn statute. It is often abbreviated as 647j4 PC or 647j4 CPC.

1. Elements of the Crime

For you to be convicted of revenge porn under California Penal Code 647(j)(4), prosecutors must prove beyond a reasonable doubt the following five elements of the jury instructions:

1. you had an image of the intimate parts of another identifiable person, or an image of you engaged in sexual intercourse, oral copulation, masturbation, sodomy, or sexual penetration,
2. you intentionally distributed that intimate image,
3. there was an understanding between you and the other person that the sexual images and/or nude photos would remain private, or they did not authorize the distribution,
4. you knew or should have known that the distribution of the image would cause the other person emotional distress, and
5. the other person suffered emotional distress.¹

With regard to the first element, an “intimate body part” means any portion of the genitals, anus, or female breast below the top of the areola.² Meanwhile, an “identifiable person” just means that it is probable that someone could identify the victim.³

With regard to the second element, you “intentionally distribute” an image if:

1. you personally distribute it, or
2. intentionally cause another person to distribute it.⁴

Examples include sending the image through email, text messages, social media, another electronic device, or in person, or posting on a porn site.

Exceptions to PC 647(j)(4)

The statute provides three scenarios where intentionally distributing intimate images is not a crime:

1. You were in the course of reporting unlawful activity,
2. You were complying with a subpoena or other court order for use in a legal proceeding, or
3. You were acting in the course of a lawful public proceeding.⁵

Advances in technology and internet accessibility spurred revenge porn.

2. Defenses

Here at Shouse Law Group, we have represented countless people charged with sex-related crimes such as revenge porn. In our experience, the following seven defenses have proven very effective with judges and prosecutors at getting these charges reduced or dismissed.

1. You did not intentionally distribute the explicit material. For example, perhaps, you put it on social media by accident.
2. You did not intend to cause emotional distress. For example, perhaps you posted something as a prank and thought the other person would find it funny and not be embarrassed or intimidated.
3. There was no serious emotional distress. Even if the alleged victim did not consent to the publication of the images, that does not mean prosecutors will be able to prove they suffered serious emotional distress.
4. You had consent. No PC 647(j)(4) violation occurred if the alleged victim consented to any distribution of the intimate photos.
5. The alleged victim was not recognizable. If there is a reasonable doubt as to the person depicted in the images, revenge porn charges cannot stand.
6. The police committed misconduct. For example, perhaps the law enforcement officers in the case found the images through an illegal search and seizure. If so, you can ask the judge to suppress them as evidence.
7. Your actions are protected by the First Amendment. The boundary between art and pornography is subjective, and perhaps the images in question are constitutionally-protected.

Note that it is not a defense that the alleged victim was above the age of consent or was a willing participant to have the photos/videos taken in the first place.

3. Penalties

Revenge porn is a California misdemeanor punishable by:

• custody in county jail for up to six months, and/or
• a maximum fine of $1,000.⁶

These penalties increase to up to one year in jail, and/or a fine of up to $2,000 if:

• you have one or more prior convictions for revenge porn, or
• the victim was a minor.

If the victim was under 18, and if you were at least 18, and it is your second or subsequent conviction, criminal invasion of privacy is a wobbler. This means it can be either:

• A misdemeanor carrying up to $2,000 and/or 1 year in jail; or
• A felony carrying 16 months, 2 years, or 3 years in jail and up to $10,000.⁷

Judges may grant summary probation in lieu of jail. Plus it may be possible to get the conviction expunged from your criminal record.

You may also face lawsuits in civil court.

4. Related Offenses

1. Peeking while loitering – Penal Code 647i PC
2. Federal “video voyeurism” law – 18 U.S. Code 1801
3. Criminal invasion of privacy – Penal Code 647j PC

5. Lawsuits for Fake Revenge Porn

Assembly Bill 602 is a relatively new piece of California legislation that gives the “victims” of fake sex videos the right to sue the person who created it or shared it.⁸

The fake videos targeted by this statute are known as “deep fakes.” These recordings graft the face of a person (often a celebrity) into a pornographic film without that person’s consent.

This right to sue would only exist if the person depicted in the video did not consent to its:

• release or
• creation.⁹

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Revenge Porn Reform: A View from the Front Lines – Florida Law Review.
• The Need to Criminalize Revenge Porn: How a Law Protecting Victims Can Avoid Running Afoul of the First Amendment – Chicago Kent Law Review.
• Revenge Porn, State Law, and Free Speech – Loyola of Los Angeles Law Review.
• The Legal Implications and Remedies Concerning Revenge Porn and Fake Porn: A Common Law Perspective – Sexuality and Culture.
• Fighting Back against Revenge Porn: A Legislative Solution – Northwestern Journal of Law & Social Policy.

Legal References: