opinion

Michigan Joins the "Revenge Porn" Ban Bandwagon

Corey Silverstein

I'm not sure why it took so long, but on May 1, 2014, the State of Michigan joined a growing number of states in seeking to criminalize "revenge porn".

Michigan Senate Bills No. 924 and No. 925 would make it either a misdeameanor or a felony (depending on whether its the individual's first or subsequent offense) to:

(1)(A) Post on the internet any sexually explicit photograph, drawing, or other visual image of another person with the intent to frighten, intimidate, or harass any person.

(1)(B) Having posted on the internet any sexually explicit photograph, drawing, or other visual image of another person, regardless of whether the posting was with the intent to frighten, intimidate, or harass any person, refuse or otherwise fail to remove that explicit photograph, drawing, or other visual image from the internet upon the written request of that other person. This subsection applies regardless of whether the other person consented to the posting of that photograph, drawing, or other visual image unless that other person knew or had reason to know the photograph, drawing, or other visual image was sexually explicit and signed a release knowingly allowing that photograph, drawing, or other visual image to be posted on the interney by that person.

The State of Michigan does propose the following affirmative defense:

(2) It is an affirmative defense in a prosecution for a violation of subseection (1) that the person took all reasonable steps to have the photograph, drawing, or other visual image removed from the internet immediately upon the written request of that other person under subsection (1)(B).

The State of Michigan also attempts to define "sexually explicit":

(3) As used in this section, "sexually explicit" means displaying a person's genitalia or anus or, if the person is a female, her nipples or areola. 

As an attorney who regularly practice criminal defense in the State of  Michigan, I'm a little surprised by the holes that the drafters of this proposed law left wide open. Couldn't the image of a girl in a sexually provocative position or wearing revealing clothing or lingerie be just as damaging to her as an image that fits within Michigan's definition of "sexually explicit"?  Is there some reason why the drafters left out the words "video" or "videotape" or "film"?

Nonetheless, it's clear that as each week passes, another jurisdiction is either passing laws or writing laws that attempt to put an end to "revenge porn".  In fact, Arizona Governor Jan Brewerm just signed one of the most aggressive "revenge porn" laws enacted thus far. 

In June's edition of XBIZ World magazine, I will be discussing the potential impact of "revenge porn" laws and their potential impact on commercial adult websites. 

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