Penal Code 647j4 PC – California Revenge Porn Laws

Penal Code 647j4 PC is the California statute that makes it a crime for a person to engage in “revenge porn.” The statute applies to the situation where (1) a “victim” initially consents to the recording of sexual images of him/her, (2) s/he has the understanding that the images will remain private, (3) but then the defendant distributes those images (often on the internet) without the other person’s consent.

Examples:

• taking naked pictures of a partner, and after a break-up, posting the images on Facebook.
• recording a person having sexual intercourse and then uploading the video on an internet sex site.
• taking upskirt photographs of a woman (with her consent), and then posting them on social media.

Defenses

A defendant can beat a charge under this statute with a good legal defense. Common defenses include:

• no intentional distribution,
• no intent to cause emotional distress, and/or
• consent.

Penalties

The crime of revenge porn is a California misdemeanor. This is opposed to a felony or an infraction.

The offense is punishable by:

• custody in county jail for up to six months, and/or
• a maximum fine of $1,000.

A judge can award misdemeanor (or summary) probation in lieu of jail time.

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

• 1. When is revenge porn a crime?
  • 1.1. Intimate body part of an identifiable person
  • 1.2. Intentional distribution
  • 1.3. Instances of no guilt
  • 1.4. Assembly Bill 602
• 2. Are there legal defenses?
  • 2.1. No intentional distribution
  • 2.2. No intent to cause emotional distress
  • 2.3. Consent
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
  • 7.1. Peeking while loitering – PC 647i
  • 7.2. Federal “video voyeurism” law – 18 U.S. Code 1801
  • 7.3. Criminal invasion of privacy – PC 647i

1. When is revenge porn a crime?

A prosecutor must prove the following to convict a defendant of revenge porn:

1. the accused had an image of the intimate body part of another identifiable person, or an image of that person engaged in sexual intercourse,
2. the defendant intentionally distributed that image,
3. there was an understanding between the defendant and the other person that the image would remain private,
4. the accused 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:

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

Note also that:

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

1.1. Intimate body party of an 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

1.2. Intentional distribution

According to revenge porn laws, a person “intentionally distributes” an image if:

1. s/he personally distributes it, or
2. intentionally causes another person to distribute it.⁴

1.3. Instances of no guilt

The statute in question says a person is not guilty of revenge porn 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

1.4. Assembly Bill 602

AB 602 is a relatively new piece of California legislation, that if approved, would:

• give 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?

A defendant can beat a revenge porn accusation with a good legal defense.

Three common defenses are:

1. no intentional distribution,
2. no intent to cause emotional distress, and/or
3. consent.

2.1. No intentional distribution

All crimes under this statute require that the defendant intentionally distributed an image. This means it is a valid defense for an accused to say that:

• while s/he may have distributed an image,
• s/he did not do so intentionally.

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

2.2. No intent to cause emotional distress

Recall that a defendant is only guilty under these laws if:

• the accused knew, or should have known, that the distribution of an image,
• would cause the other person to suffer emotional distress.

Therefore, it is a defense for an accused to say that s/he did not have this knowledge. Perhaps, for example, the accused posted something as a prank and thought the other person would find it funny.

2.3. Consent

It is always a defense for an accused to show that the alleged “victim” consented to any distribution.

3. What are the penalties?

The crime of revenge porn is a California misdemeanor.

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:

• the defendant has one or more prior convictions for revenge porn, or
• the victim was a minor.⁹

4. Are there immigration consequences?

A conviction under these laws will not have any negative immigration consequences.

Some California crimes can result in a non-citizen being either:

• deported, or
• marked as inadmissible.

An example is a crime involving moral turpitude.

But revenge porn is not this type of crime.

5. Can a person get a conviction expunged?

A person can get an expungement if convicted of revenge porn.

Penal Code 1203.4 PC says an expungement removes many of the hardships associated with a conviction.

A defendant is entitled to an expungement if s/he successfully completes either:

• probation, or
• his jail term (whichever is applicable).

6. Does a conviction affect gun rights?

A conviction under this statute will not impact a defendant’s gun rights.

California law says that some crimes (e.g., felonies) will result in the defendant losing his right to own or possess a gun.

Revenge porn, though, is not one of these crimes.

7. Are there related offenses?

There are three crimes related to revenge porn. These are:

1. peeking while loitering – PC 647i,
2. federal “video voyeurism” law – 18 U.S. Code 1801, and
3. criminal invasion of privacy – PC 647j.

7.1. Peeking while loitering – PC 647i

Penal Code 647i PC makes it a crime for a person to:

1. peek in the door or window of any inhabited structure, and
2. do so while loitering on private property.

Note that this law focuses on peeking, while PC 647j4 deals with the distribution of images.

7.2. Federal “video voyeurism” law – 18 U.S. Code 1801

18 USC 1801 makes it a federal crime for a person to knowingly and intentionally:

1. capture an image of an individual’s “private area(s),”
2. without the person’s consent, and
3. do so when the “victim” was in a place with a reasonable expectation of privacy.

This law prohibits the capturing of images no matter if they were distributed or not.

7.3. Criminal invasion of privacy – PC 647j

Penal Code 647j PC makes it a crime for a person to invade someone’s privacy by:

1. using a device to look at someone through a hole or opening,
2. using a concealed camera to look under or through someone’s clothing, or
3. using a hidden camera to view a person’s body in a private room.

Again, this statute prohibits the invasion of privacy and does not require that any images get shown or distributed.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

For information on revenge porn charges in Nevada and Colorado, please see our articles on:

• “Suing for ‘Revenge Porn’ in Nevada,” and
• “Colorado ‘Revenge Porn’ Laws CRS 18-7-107.”

Legal References: