§ 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 $1000.00.

Note that the section is often abbreviated as 647j4 PC or 647j4 CPC as shorthand for the California Penal Code.

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

“A 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.“

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. When is revenge porn a crime?
• 2. Are there legal defenses?
• 3. What is the penalty?
• 4. Are there related offenses?

1. When is revenge porn a crime?

A prosecutor must prove the following to convict you of violating California revenge porn laws:

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,
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

Questions often arise under this statute on the meaning of:

• the intimate body part of an identifiable person, and
• intentional distribution.

Note also that:

• Penal Code 647j4 lists situations when you are not guilty of a crime, and
• a new piece of legislation, Assembly Bill 602, gives certain “victims” the right to sue.

Image of the intimate body part of another identifiable person

For purposes of PC 647j4, 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.²

An “identifiable person” just means that it is probable that someone could identify the victim.³

Intentional distribution

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.

Instances of no guilt

The statute in question says you are not guilty of violating PC 647j4 in the following circumstances:

• in the course of reporting unlawful activity,
• when complying with a subpoena or other court order for use in a legal proceeding, or
• when acting in the course of a lawful public proceeding.⁵

Assembly Bill 602

AB 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.⁶

This right to sue would only exist if:

• the person depicted in the video did not consent,
• to its release or creation.⁷

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.

2. Are there legal defenses?

You can beat a revenge porn accusation with a good legal defense.

Three common defenses to these criminal charges are:

1. no intentional distribution,
2. no intent to cause emotional distress,
3. consent,
4. lack of emotional distress, and/or
5. insufficient visibility

It is also a defense that the law enforcement officers found the images through an illegal search and seizure or that the your actions are protected by the First Amendment.

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.

No intentional distribution

All crimes under this statute require that you intentionally distribute an image. This means it is a valid defense for you to say that:

• while you may have distributed explicit material,
• you did not do so intentionally.

Perhaps, for example, you put it on social media by accident.

No intent to cause emotional distress

Recall that you are only guilty under these laws if:

• you knew, or should have known, that the distribution of an image of another person engaging in sexual activity or nudity,
• would cause the other person to suffer serious emotional distress.

Therefore, it is a defense for you to say that you did not have this knowledge of the possible repercussions. Perhaps, for example, you posted something as a prank and thought the other person would find it funny and not be embarrassed or intimidated.

Consent

It is always a defense for you to show that the alleged victim of revenge porn consented to any distribution of the intimate photos.

No emotional distress

If the prosecutors cannot prove that the alleged victim suffered emotional distress (even if they did not consent to the publication of the images), then the case should be dismissed.

Insufficient visibility

Perhaps the alleged victim cannot be identified or recognized from the images. If there is a reasonable doubt as to the person depicted in the images, revenge porn charges cannot stand.

3. What is the penalty?

The crime of revenge porn is a California misdemeanor offense.

The offense is punishable by:

• custody in county jail for up to six months, and/or
• a maximum fine of $1,000.⁸

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.⁹

Judges may grant summary probation in lieu of jail. Plus it may be possible to get the conviction expunged from your criminal record. Having a criminal record can negatively impact your ability to get a professional license, employment, education, and housing.

You may also face lawsuits in civil court.

4. Are there related offenses?

Thee other offenses related to (and sometimes charged together with) 647j4 PC are:

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

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