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Inspired by a California Tinder profile that said "If you send me an unsolicited dic pic, all my friends will see it and will laugh at you"

Obviously, sending unsolicited nude pictures of yourself to strangers is itself potentially criminal and morally abhorrent. However, if the unfortunate recipient of such unsolicited dick pic chooses to share that image with third parties, does sharing this nude image without the sender's consent constitute illegal "revenge porn" under California law?

Question inspired by California, but answers from other jurisdictions are welcome.

guestposting23
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Probably not

s91Q of the Crimes Act 1900 NSW makes intentionally distributing intimate images a) without consent and b) knowing they did not consent or being reckless as to consent.

The person in question has been told that intimate images sent to this destination will be shared. Their sending them after this is probably consent.

Dale M
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Very Likely Not

California Penal Code section 647(j)(4) provides that:

(4) (A) 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.

(B) A person intentionally distributes an image described in subparagraph (A) when that person personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image.

(C) As used in this paragraph, “intimate body part” means any portion of the genitals, the anus and, in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.

(D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies:

(i) The distribution is made in the course of reporting an unlawful activity.

(ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.

(iii) The distribution is made in the course of a lawful public proceeding.

Notice that there are knowledge elements to this offense. It is only an offense IF "the persons agree or understand that the image shall remain private," and "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"

If the image is sent to a person who advertises that if such images are sent "all my friends will see it " it will be hard to establish that the parties (jointly) intended for the image to remain private or that the recipient should have known that the image was private.

This page from a law office discusses the law, and points out that in spite of the common name, no motive of "revenge" is needed for a conviction under this law.

This page from a legal referral service discusses this law and relates laws such as those against stalking and harassment. It emphasizes "the intent to cause fear in the other person" which does not seem presnt in the situation described in the question.

David Siegel
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Probably not, as long as the profile's disclaimer was prominent enough for the sender to give his informed consent.

Revenge porn, or more accurately, "Disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress" contrary to section 33 of the Criminal Justice and Courts Act 2015, is:

(1) A person commits an offence if—

  • (a) the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears,

  • (b) by so doing, the person intends to cause distress to that individual, and

  • (c) the disclosure is, or would be, made without the consent of that individual.

If there is consent, then the offence is not committed.

For completeness, setion 35 gives the definitions of “private” and “sexual”:

(1) The following apply for the purposes of section 33.

(2) A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public.

(3) A photograph or film is “sexual” if—

  • (a) it shows all or part of an individual's exposed genitals or pubic area,

  • (b) it shows something that a reasonable person would consider to be sexual because of its nature, or

  • (c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual.