HB65: Punishing “Revenge Porn” in Utah

This bill was merged with House Bill 71, which passed the House 66-6 and passed the Senate unanimously. Visit our Legislative Index to see the final vote rankings for the 2014 general session.

Libertas Institute opposes this bill in its current form.

At the outset, we should note that we strongly sympathize with people (primarily young women) who find themselves as subjects of what’s been termed “revenge porn.” At the same time, we note that when such persons have freely consented to having their picture taken, or have freely shared their own image with another person, they are putting themselves at significant risk and may reap some unfortunate consequences should the other person choose to disseminate those images.

Keep in mind, of course, that these use cases are almost entirely non-commercial. Thus, standard consent practices regarding the use of one’s likeness in endorsement or for profit do not apply. We see this example as being more analogous to sharing a secret with another person. If that person breaks your trust and shares your secret with another individual, or posts it online, that is not and should not be considered a criminal act. It is unfortunate, but it is the risk that one takes when entrusting another person with something intimate.

Whether it’s a very personal secret or a very revealing image, those who share of themselves with others must assume responsibility for their actions. If a woman voluntarily removes her clothes, voluntarily takes a photo of her body, and voluntarily sends it to another person, then she should not consider herself a true victim when that image finds its way into the hands of a third party.

We therefore oppose HB65 by Representative Craig Hall in its current form, as it makes a criminal out of a person who was freely sent something by another. We suggest that this bill would be improved by limiting its application only to those instances in which the photo was taken without consent. If persons desire to share something and legally prohibit the other person from sharing, then contract law already provides for this; just as non-disclosure agreements restrict the dissemination of secrets, such agreements would also provide a legal remedy against those who violate an explicit agreement not to share something that has been voluntarily offered.

A related bill, HB71 by Rep. Marie Poulson, is nearly identical. However, unlike HB65, it does not codify an expectation of privacy within a private or confidential relationship that would allow for a presumption that such images should not be shared with a third party.

Those who are truly concerned about the potential harm that might come from the distribution of photos of their naked bodies should not consent to others taking their photo in this manner, let alone do it themselves. At some point, people must be held accountable for their own actions.