Revenge Porn

Revenge Porn

Minnesota Criminalized Revenge Porn in 2016

In 2016, Minnesota became the 33rd state in the country to criminalize the nonconsensual dissemination of private sexual images, commonly referred to as “revenge porn.” In 2017, the first person prosecuted under the new law was sentenced. As prosecutors and law enforcement have become acclimated to the law and how to conduct investigations involving its violation, our firm has witnessed an increase in the frequency of prosecutions under Minnesota’s revenge porn law. If you have been charged with violating Minnesota’s revenge porn law, you need knowledgeable and effective advocacy. Our attorneys are on the cutting edge of defending these cases.

Nonconsensual Dissemination of Private Sexual Images – Minnesota’s Revenge Porn Law

Minnesota’s revenge porn law makes it a crime to intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part, when the person is identifiable, when the person posting or sharing the image knows or reasonably should know that the person depicted in the image does not consent to the dissemination, and the image was created under circumstances where the person depicted had a reasonable expectation of privacy.

A violation of the law is a gross misdemeanor, unless any of the following circumstances exist, in which case the charge will be enhanced to a felony:

• The person depicted in the image suffers financial loss due to the dissemination of the image
• The violator disseminates the image with intent to profit from the dissemination.
• The violator maintains an internet website, online service, online application, or mobile application for the purpose of disseminating the image.
• The violator posts the image on a website.
• The violator disseminates the image with intent to harass the person depicted in the image.
• The violator obtained the image by committing theft, interference with privacy, computer theft, or unauthorized computer access.

If any of the above circumstances exist, a person may be charged with a felony, punishable by up to three years imprisonment, a $5,000 fine, or both.

Minnesota Revenge Porn Defense

Importantly, it is not a defense to prosecution that the person in the image consented to the capture or possession of the image. This language is built directly into the statute. But like any criminal statute, the courts are bound to weigh in on certain aspects of the new law, both to interpret the meaning of words and phrases if they are not clear on their face, and to prescribe the limits of the law’s application. Additionally, a number of issues may be contested in any given case, including issues related to a defendant’s intent, the nature of the images and whether they fall within the reach of the statute, and, like any criminal case, whether the government has the proof necessary to convict. Some of these issues are discussed in more detail below.

Whether the Person is “Identifiable”

In order to convict, a prosecutor must possess proof beyond a reasonable doubt that a person is “identifiable.” This element of the crime will be met when (1) the person is identifiable in the image itself; (2) when the person in the image can identify their self in the image; (3) when another person can identify the person in the image; or (4) when the person is identifiable by personal information displayed in connection with the image. “Personal information” means “any identifier that permits communication, or in-person contact with a person.” It is not necessary that an image be accompanied by a display of a person’s full name; the law specifically allows for prosecution in a case where only a nickname is used. Nevertheless, the person must still be identifiable. By its very nature, this element of the crime provides significant factual and legal issues for a defendant to contest.

“Knows or Reasonably Should Know”

As stated above, the law only punishes nonconsensual dissemination of private sexual images. The element of the statute dealing with a defendant’s mental state only requires a prosecutor to prove that “the actor knows or reasonably should know that the person depicted in the image does not consent to the dissemination.” While this language casts a broad net (“reasonably should know”), if the issue of consent presents a fact-question, there may be a strong defense to criminal liability. Like other areas of the criminal law, the issue of consent is often proved by circumstantial evidence. This requires a thorough examination of all evidence available, likely including e-mails, text messages, social media communications, phone records, and any other evidence that may bear on the question of consent. There is no presumption that a person does not consent to dissemination. The burden is on the government to prove this element. If the element is not met, a person is not guilty.

“Intent to Harass”

If a prosecutor believes that dissemination of an image was done with the intent to harass the person depicted, a charge may be enhanced to a felony. Prosecutors routinely enhance charges under this theory on the assumption that such an intent exists automatically in most cases. After all, it is called “revenge” porn for a reason. But just like with the issue of consent, there is no presumption that an “intent to harass” exists merely by the act of dissemination. A prosecutor must still prove the required intent beyond a reasonable doubt. On top of that, “harass” is specifically defined as “an act that would cause a substantial adverse effect on the safety, security, or privacy of a reasonable person.” With this definition, there is ample room to defend against the elevation of the charge under the “intent to harass” theory. Our team of experienced criminal defense attorneys are capable of defending against these charges with zeal and creativity.

Lundgren & Johnson’s Attorneys are Your Minnesota Revenge Porn Defense Lawyers

This page scratches the surface on Minnesota’s revenge porn law. There are numerous other issues that may be present in a given case that provide a defense to charges under this new law. If you have been charged with any offense under Minnesota’s revenge porn law, we are available to speak with you about your case.  You can reach David R. Lundgren or Adam T. Johnson from Lundgren & Johnson 24 hours a day at 612-767-9643 or by entering your information on this website. At our firm, we fight hard for you.