Apex woman is the first charged under North Carolina’s new “revenge porn” law

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A twenty-year-old woman in Apex is the first person charged under North Carolina’s new “revenge porn” law.  The new law makes it a crime to “knowingly disclose an image of another person with the intent to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.”

Ashley Augustine was charged last month with disclosing private parts, and has since been released on a $3,000 bond from the Wake County jail.   Apparently, Augustine posted a picture of a Garner woman having sex and the woman did not consent to the posting.  The posting occurred after the woman had taken out a restraining order against Augustine just a week prior to the release.

Although the bill imposes a lesser punishment for minors, several opposing views surround this portion of the bill.

The new law that went into effect on December 1, 2016, makes it a Class H felony for anyone to post explicit photos or videos of a person without their consent, with the intent to harass, extort, or intimidate the victim.  The law also addresses punishment for minors, making this crime a Class 1 misdemeanor for anyone under the age of 18.

Although the bill imposes a lesser punishment for minors, several opposing views surround this portion of the bill.  In an interview with the News & Observer, North Carolina Senators who proposed this bill spoke about the different views surrounding minimizing the penalty for minors.

Senator Gladys Robinson (D-NC) proposed limiting the first offense to a misdemeanor for minors, so as to not impose such a harsh punishment for teens who may have just made a bad decision.  “We are concerned about kids who do stupid stuff and are slapped with a felony at a young age.  That’s going to impact their total lives without an opportunity to redeem themselves,” Robinson said.

Senator Kathy Harrington (R-NC) disagreed with Robinson, arguing that there should be no leniency for anyone who violates this law, regardless of age.  “The victim doesn’t get a second chance.  The victim is victimized 24 hours a day for the rest of their lives,” Harrington said.

[North Carolina’s new “revenge porn” law] comes in response to several isolated incidents of unauthorized nude photos and videos being posted to the Internet of both minors and adults.  

North Carolina’s new “revenge porn” law, House Bill 792, is the first of its kind in North Carolina.  It comes in response to several isolated incidents of unauthorized nude photos and videos being posted to the Internet of both minors and adults.  In 2015, police officers for Charlotte Mecklenburg Schools investigated a case at Hough High School where a former student received a blackmail letter in which someone threatened to release nude photos of her unless she sent him more photos.  Police eventually tracked down the suspect, who was linked to more than a dozen other victims.  Back in February of 2015, police investigated an incident at the same high school in which a student uploaded 75 nude photos of high school and middle school students to a Dropbox file.

Outside of the school context, North Carolina has seen many cases of “revenge porn” as well.  For example, in 2010, Annmarie Chiarini became a victim of revenge porn when her ex-boyfriend posted CDs on Ebay that contained 88 nude photos of her and auctioned them off to the highest bidder.  Chiarini’s ex-boyfriend also sent links of the auction to her family, friends, and co-workers; these actions forever changed the course of Chiarini’s life.

Although House Bill 792 is primarily aimed at deterring the unauthorized posting of nude photos and videos through criminal prosecution, the new law also sets out a cause of action for victims to pursue civil sanctions and remedies against an individual who has been charged under this law.  Victims of “revenge porn” could sue for actual damages, punitive damages, and attorney’s fees.

House Bill 792 states that a person is guilty of violating the law if the “depicted person had a reasonable expectation of privacy.”

“Revenge porn,” or “Cyber-rape,” as it has sometimes been described, raises numerous legal implications.  Many torts claim issues come to light with the main issue being invasion of privacy.  House Bill 792 states that a person is guilty of violating the law if the “depicted person had a reasonable expectation of privacy.”

On the civil side, a victim under North Carolina’s “revenge porn” law would have a strong case to pursue an invasion of privacy claim against a criminal defendant charged under this law.  There are four main types of invasion of privacy: (1) Intrusion upon seclusion, (2) Appropriation of Name or Likeness, (3) Public Disclosure of Private Facts and (4) False Light.

“Intrusion upon seclusion” requires a person to intrude upon someone’s private affairs physically or otherwise, and the intrusion must be highly offensive to a reasonable person.  “Appropriation of Name or Likeness” requires that a person use an individual’s name, picture, etc., for the benefit of the person who has committed the appropriation. A “Public Disclosure of Private Facts” claim allows the plaintiff to take legal action against a person who reveals information to the public that is not of public concern (even if the information is truthful).  “False light” allows a plaintiff to sue if a person discloses information about the plaintiff that is misleading, but technically not false.

[S]ome legal professionals have suggested that criminalizing revenge porn stifles the First Amendment right to free speech . . .

While many individuals applaud legislators for taking action to protect victims of revenge porn, some legal professionals have suggested that criminalizing revenge porn stifles the First Amendment right to free speech because laws that address revenge porn are “overbroad,” i.e. the laws encompass too many activities unrelated to revenge porn.  While revenge porn laws typically will not affect First Amendment rights because these laws deal primarily with private action, questions have still been raised regarding whether certain aspects of the laws are overbroad.

In its recent suit against the State of Arizona, the American Civil Liberties Union (ACLU) argued that the “First Amendment is not a guardian of taste,” and that the Constitution protects speech that is offensive or emotionally distressing.  Further, the ACLU argued that the Arizona law that placed restrictions on revenge porn, applied equally to private photographs and images that were “newsworthy, historical or artistic images,” thus making the law overbroad and unfair to other individuals.

Lee Rowland, staff attorney with ACLU’s Speech, Privacy and Technology Project voiced her concern stating “Revenge porn is exclusively a digital phenomenon, and this law applies to all images whether printed in a book or shared online.”  Rowland and her counterparts worry laws like the one passed in North Carolina will have a “significant chilling effect” on booksellers who might be worried about prosecution for selling questionable material.

 North Carolina is the 27th state to enact a “revenge porn” law.

Interestingly, “revenge porn” has sparked conversation in other professional fields as well.  In 2014, the American Psychological Association published an article that called for state legislatures to take action against individuals who posted nude photos or videos of ex-partners.  The article went on to describe that revenge porn is “alarmingly common” and that while approximately 10 percent of ex-partners threaten to post sexually explicit photos and videos online, approximately 60 percent of those threats become a reality.

Regardless of the differing views surrounding the legality of revenge porn laws, it is abundantly clear that legislative action is necessary to deter individuals from posting unauthorized, explicit photographs and videos of ex-partners or even current enemies.  This view is growing throughout our country as North Carolina is the 27th state to enact a “revenge porn” law.

These postings are more than just a joke or momentary lapse in judgment.  A photo or video on the internet lasts a lifetime for the victim and can have devastating consequences when applying for a job, maintaining a relationship, or simply being present in a public place.  Maybe North Carolina’s new “revenge porn” law will encourage individuals to “think before they post” to avoid criminal and civil consequences.