|SAME AS||No Same As|
|COSPNSR||Paulin, Simotas, Barrett, Benedetto, McDonough, Montesano, Blankenbush, Raia, Otis, Finch, Quart, Ortiz, Brabenec, Friend, Stirpe, Schimminger, Giglio, Abbate, Hyndman, Seawright, Mosley, Gottfried, Hevesi, Perry, Weprin, Lavine, Woerner, Fernandez|
|MLTSPNSR||Crouch, Englebright, Galef, Miller ML, Palmesano, Rodriguez|
|Add §§250.70 & 250.75, Pen L|
|Establishes the crime of non-consensual dissemination of sexually explicit images as a class A misdemeanor.|
|01/09/2019||referred to codes|
|03/06/2019||enacting clause stricken|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A326 SPONSOR: Braunstein (MS)
TITLE OF BILL: An act to amend the penal law, in relation to estab- lishing the crime of non-consensual dissemination of sexually explicit images   PURPOSE OR GENERAL IDEA OF BILL: Relates to establishing the crime of nonconsensual dissemination of sexually explicit images.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 adds a new section, 250.70 to the New York Penal Law, which provides that a person is guilty of non-consensual dissemination of sexually explicit images when he or she knowingly discloses a photo- graph, film, videotape, or recording of another person whose intimate parts are exposed or who is engaged in an act of sexual contact, when a reasonable person would have known that the person depicted would not have consented to such dissemination. Additionally, the dissemination must be without such person's consent and under circumstances in which the person has a reasonable expectation of privacy, meaning that the person has consented to the capture or possession of an image within the context of a private or confidential relationship. 250.70.1 provides definitions of "intimate parts" and "sexual contact." 250.70.2 provides exceptions for lawful and common practices of law enforcement, disseminations made for a legitimate public purpose, and situations involving voluntary exposure in public or commercial settings, and disseminations made in the reporting of unlawful activity. 250.70.3 Non-consensual dissemination of sexually explicit images is a class A misdemeanor. 250.75 is also added to the penal law to allow for a civil cause of action for the non-consensual dissemination of sexually explicit images. The statute of limitations to bring suit is five years. Nothing in the section requires that a criminal charge be brought or a criminal conviction obtained as a condition of bringing the civil cause of action. In addition to injunctive relief, the plaintiff is entitled to actual damages, punitive damages, and reasonable court costs and attor- ney fees. The actual damages are the higher of either (1) the calculated actual damages at the rate of $1,000 per day for each day the images were viewable up to thirty days, or each time a threat to distribute was made, or an image fraudulently obtained, or (2) $10,000. There are several affirmative defenses to the civil suit included in this legis- lation. Additionally, 250.75.4 allows the plaintiff's identifying infor- mation to be redacted and to proceed with the case under a pseudonym. The court must inform the plaintiff of the option to proceed under a pseudonym at the earliest possible point and shall maintain records in a manner that protects the plaintiff's confidentiality.   JUSTIFICATION: In an era of increased text messaging, social networking, and emailing, people in intimate relationships sometimes share pictures with each other, some of which may be sexually explicit in nature. However, recip- ients of these images do not always keep the images within the confines of an intimate relationship, and have the ability to widely disseminate the photos on the Internet. The non-consensual dissemination of such sexually explicit images, also known as "revenge porn" is often provided to Internet websites, and features photos sometimes accompanied by disparaging descriptions and identifying details, such as where the victims live and work, as well as links to their social network pages. Posting these photographs online is damaging to the reputations of the victims. These photographs have extensive negative effects, including destroying future intimate relationships and educational and employment opportunities. Victims are routinely threatened with sexual assault, stalked, harassed, or fired from jobs. New York's current distribution of unlawful surveillance law only governs photographs taken without the subject's consent. This bill would govern photographs that are captured consensually, as part of an inti- mate, private relationship, which are later disclosed by an individual to the public without the consent of the individual photographed. Criminalization is preferable to civil suits by victims because civil suits do not deter those who upload or disclose new images after a civil suit has ended. Furthermore, a lengthy trial is emotionally exhausting and prohibitively expensive. Moreover, the websites that distribute nonconsensual pornography are given broad immunity for civil liability under federal law through the Communications Decency Act. Therefore, criminalizing dissemination of these photos may prevent websites from benefiting from the harmful images. However, because New York relies on common law to pursue a civil case, including the torts of harassment and intentional infliction of emotional distress, a civil suit is often difficult to pursue and win. As such, this legislation adds a civil cause of action for non-consensu- al dissemination of sexually explicit images that would provide recourse to victims. The civil cause of action is designed to work in conjunction with the criminal law, and does not require that a criminal conviction or charge be obtained in order to proceed. The victim will have a choice whether to pursue a criminal or civil case, or both. Additionally, victims of non-consensual pornography have five years to bring a suit for the nonconsensual dissemination of sexually explicit images. The criminal portion of the bill is also narrowly drawn so as not to infringe on First Amendment rights, as there is no constitutional protection afforded to individuals who consume or distribute sexually explicit images of individuals without their consent. The bill also creates exceptions for lawful activity.   PRIOR LEGISLATIVE HISTORY: 2013-2014: A.8214/S.5949 - Amend and recommit to Codes. 2015-2016: A.571-B/S.4450-B - Amend and recommit to Codes. 2017-2018: A.1641-A/S.2725-A - Referred to Codes.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
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STATE OF NEW YORK ________________________________________________________________________ 326 2019-2020 Regular Sessions IN ASSEMBLY (Prefiled) January 9, 2019 ___________ Introduced by M. of A. BRAUNSTEIN, PAULIN, SIMOTAS, BARRETT, BENEDETTO, McDONOUGH, MONTESANO, BLANKENBUSH, RAIA, OTIS, FINCH, QUART, ORTIZ, BRABENEC, FRIEND, STIRPE, SCHIMMINGER, GIGLIO, ABBATE, HYNDMAN, SEAWRIGHT, MOSLEY, GOTTFRIED, HEVESI, PERRY, WEPRIN, LAVINE, WOERNER, FERNANDEZ -- Multi-Sponsored by -- M. of A. CROUCH, ENGLEBRIGHT, GALEF, M. L. MILLER, PALMESANO, RODRIGUEZ -- read once and referred to the Committee on Codes AN ACT to amend the penal law, in relation to establishing the crime of non-consensual dissemination of sexually explicit images The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The penal law is amended by adding two new sections 250.70 2 and 250.75 to read as follows: 3 § 250.70 Non-consensual dissemination of sexually explicit images. 4 A person is guilty of non-consensual dissemination of sexually explic- 5 it images when he or she knowingly and without consent of the depicted 6 person disseminates a photograph, film, videotape, recording, or any 7 other reproduction of the image of such depicted person whose intimate 8 parts are exposed or who is engaged in an act of sexual contact, when a 9 reasonable person would have known that the person depicted would not 10 have consented to such dissemination, and under circumstances in which 11 the depicted person has a reasonable expectation of privacy. A person 12 who has consented to the capture or possession of an image within the 13 context of a private or confidential relationship retains a reasonable 14 expectation of privacy with regard to dissemination beyond that 15 relationship. 16 1. For the purposes of this section: 17 (a) "Intimate parts" means the naked genitals, pubic area, anus, or 18 female post-pubescent nipple of the person. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02655-01-9A. 326 2 1 (b) "Sexual contact" means but is not limited to, masturbation, geni- 2 tal, anal, or oral sex, sexual penetration with objects, or the transfer 3 or transmission of semen upon any part of the depicted person's body. 4 2. This section shall not apply to: 5 (a) lawful and common practices of law enforcement, criminal report- 6 ing, or legal proceedings, or disseminations made in the reporting of 7 unlawful activity; 8 (b) situations involving voluntary exposure in public or commercial 9 settings, or disseminations made for a legitimate public purpose; or 10 (c) providers of an interactive computer service, as defined in 47 11 U.S.C. § 230(f), for images provided by another person. 12 Non-consensual dissemination of sexually explicit images is a class A 13 misdemeanor. 14 § 250.75 Civil cause of action for non-consensual dissemination of sexu- 15 ally explicit images. 16 1. A civil cause of action lies against a person who disseminates, 17 threatens to disseminate an image of another person identifiable from 18 the image itself or information displayed in connection with the image 19 and whose intimate parts are exposed or is engaged in sexual conduct 20 without that other person's consent, if the actor: 21 (a) obtained the image or images under circumstances in which a 22 reasonable person would know or understand that the image was to remain 23 private, including but not limited to images shared within the context 24 of a confidential relationship that were then disseminated beyond such 25 relationship; or 26 (b) knowingly obtained the image or images under false pretenses or 27 without authorization or by exceeding authorized access to property, 28 accounts, messages, files, devices, or resources. 29 2. The following affirmative defense shall apply if: 30 (a) The distributed material was created or distributed under an 31 agreement by the person appearing in the material for its public use and 32 distribution; or 33 (b) The distributed material constitutes a matter of public concern, 34 lawful and common practices of law enforcement, criminal reporting, 35 legal proceedings, medical treatment, or scientific or educational 36 activities; or 37 (c) The distributed material was photographed, filmed, videotaped, 38 recorded, or otherwise reproduced in a public place and under circum- 39 stances in which the person depicted had no reasonable expectation of 40 privacy. 41 3. In addition to other relief available at law, including an order by 42 the court to destroy any image obtained or disseminated in violation of 43 this section, and to preserve discoverable information, and preliminary 44 and permanent injunctive relief, the actor shall be liable to the plain- 45 tiff for: 46 (a) Actual damages, but not less than liquidated damages, to be 47 computed at the rate of one thousand dollars per day for each day the 48 image or images were viewable or each instance a threat to distribute 49 was made or an image fraudulently obtained up to thirty days, or ten 50 thousand dollars, whichever is higher; and 51 (b) Punitive damages; and 52 (c) Reasonable court costs and attorneys' fees. 53 4. In an action brought under this section, all identifying informa- 54 tion about the plaintiff may be redacted from pleadings and court 55 filings and the plaintiff may proceed under pseudonym; the court shall 56 inform the plaintiff of the option to proceed under pseudonym at theA. 326 3 1 earliest possible point and shall maintain the records in a manner that 2 protects the plaintiff's confidentiality. 3 5. The following definitions shall apply: (a) "Personal information" 4 includes, but is not limited to, name or any part thereof, address or 5 any part thereof, age, names of family members, marital status, 6 relationship to defendant, race or ethnic background, employer, school, 7 or URLs, social media account usernames, and screenshots related to the 8 cause of action; 9 (b) "Actual damages" includes, but is not limited to, pain and suffer- 10 ing, emotional distress, economic damages, and lost earnings. 11 6. A cause of action brought under this section may be brought no more 12 than five years after the last dissemination or incident. 13 7. The actor's claim that the depicted person is a public figure shall 14 not be sufficient to establish the affirmative defense that distribution 15 constitutes a matter of public concern. 16 8. Nothing in this section shall be construed to require that a crimi- 17 nal charge be brought or a criminal conviction be obtained as a condi- 18 tion of bringing a civil cause of action or receiving a civil judgment 19 pursuant to this section or be construed to require that any of the 20 rules governing a criminal proceeding be applicable to any such civil 21 action. 22 9. This section shall not apply to providers of an interactive comput- 23 er service, as defined in 47 U.S.C. § 230(f), for images provided by 24 another person. 25 § 2. This act shall take effect on the first of November next succeed- 26 ing the date on which it shall have become a law.