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A02056 Summary:

A02056 Actions:

A02056 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A2056B
 
SPONSOR: Braunstein

 
TITLE OF BILL:  An act to amend the penal law, the criminal procedure
law, the family court act and the civil rights law, in relation to
establishing the crime of unlawful dissemination or publication of an
intimate image
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
Establishes the crime of unlawful dissemination or publication of an
intimate image.
 
 
SUMMARY OF SPECIFIC PROVISIONS:
 
Section 1 of the bill creates the crime of unlawful dissemination or
publication of an intimate image. A person is guilty of this crime when,
with intent to cause harm to the emotional, financial or physical
welfare of another person, he or she intentionally disseminates or
publishes an intimate still or video image of such other person, without
such person's consent. An intimate image is a still or video image which
shows the intimate parts of such person, or depicts such person engaging
in sexual conduct as defined in the penal law. Unlawful dissemination or
publication of an intimate image is a class A misdemeanor.
 
Section 2 of the bill creates a private right of action for an individ-
ual to pursue damages and injunctive relief against someone who unlaw-
fully disseminates or publishes an intimate image. The private right 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. An individual can also commence a special proceeding
to obtain a court order to have an intimate image permanently removed
from the internet.

 
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 unlawful dissemination and publication of such intimate 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.
 
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 and publication 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 private right of action for unlawful
dissemination and publication images that would provide recourse to
victims. The private right 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.
 
 
PRIOR LEGISLATIVE HISTORY:
 
A1118a of 2018
 
 
FISCAL IMPLICATIONS:
 
None.
 
 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law.

A02056 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2056--B
                                                                 Cal. No. 27
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 22, 2019
                                       ___________
 
        Introduced  by  M.  of  A.  BRAUNSTEIN,  GUNTHER,  WEPRIN, PAULIN, OTIS,
          BUTTENSCHON, M. L. MILLER -- read once and referred to  the  Committee
          on  Codes  -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee -- reported from  committee,
          advanced  to a third reading, amended and ordered reprinted, retaining
          its place on the order of third reading
 
        AN ACT to amend the penal law, the criminal procedure  law,  the  family
          court  act  and  the civil rights law, in relation to establishing the
          crime of unlawful dissemination or publication of an intimate image
 
          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 a new section 245.15 to
     2  read as follows:
     3  § 245.15 Unlawful dissemination or publication of an intimate image.
     4    1. A person is guilty of unlawful dissemination or publication  of  an
     5  intimate image when:
     6    (a)  with intent to cause harm to the emotional, financial or physical
     7  welfare of another person,  he  or  she  intentionally  disseminates  or
     8  publishes  a still or video image of such other person, who is identifi-
     9  able from the still or video image itself or from information  displayed
    10  in connection with the still or video image, without such other person's
    11  consent, which depicts:
    12    (i) an unclothed or exposed intimate part of such other person; or
    13    (ii) such other person engaging in sexual conduct as defined in subdi-
    14  vision ten of section 130.00 of this chapter with another person; and
    15    (b)  such  still or video image was taken under circumstances when the
    16  person depicted had a reasonable expectation of privacy and the  defend-
    17  ant  knew  or  reasonably should have known the person depicted intended
    18  for the still or video image to remain private,  regardless  of  whether
    19  the defendant was present when the still or video image was taken.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06276-09-9
        A. 2056--B                          2
 
     1    2.  For purposes of this section "intimate part" means the naked geni-
     2  tals, pubic area, anus or female nipple of the person.
     3    2-a.  For  purposes  of this section "disseminate" and "publish" shall
     4  have the same meaning as defined in section 250.40 of this title.
     5    3. This section shall not apply to the following:
     6    (a) the reporting of unlawful conduct;
     7    (b) dissemination or publication of  an  intimate  image  made  during
     8  lawful  and  common  practices  of law enforcement, legal proceedings or
     9  medical treatment;
    10    (c) images involving voluntary exposure  in  a  public  or  commercial
    11  setting;
    12    (d)  dissemination  or  publication  of  an  intimate image made for a
    13  legitimate public purpose;
    14    (e) providers of an interactive computer service for  images  provided
    15  by  another  person.    For  purposes  of this subdivision, "interactive
    16  computer service" shall mean: any information service, system or  access
    17  software  provider  that provides or enables computer access by multiple
    18  users to a computer server, including specifically a service  or  system
    19  that  provides  access  to  the  internet  and  such systems operated or
    20  services offered by libraries or educational institutions.
    21    Unlawful dissemination or publication of an intimate image is a  class
    22  A misdemeanor.
    23    §  2.  The opening paragraph of subdivision 1 of section 530.11 of the
    24  criminal procedure law, as amended by section 4 of part NN of chapter 55
    25  of the laws of 2018, is amended to read as follows:
    26    The family court and the criminal courts shall have concurrent  juris-
    27  diction  over  any  proceeding  concerning  acts  which would constitute
    28  disorderly conduct, unlawful dissemination or publication of an intimate
    29  image, harassment in the first degree, harassment in the second  degree,
    30  aggravated  harassment in the second degree, sexual misconduct, forcible
    31  touching, sexual abuse in the third degree, sexual abuse in  the  second
    32  degree  as  set  forth in subdivision one of section 130.60 of the penal
    33  law, stalking in the first degree, stalking in the second degree, stalk-
    34  ing in the  third  degree,  stalking  in  the  fourth  degree,  criminal
    35  mischief,  menacing  in the second degree, menacing in the third degree,
    36  reckless endangerment, strangulation in the first degree,  strangulation
    37  in  the second degree, criminal obstruction of breathing or blood circu-
    38  lation, assault in the second degree, assault in the  third  degree,  an
    39  attempted assault, identity theft in the first degree, identity theft in
    40  the  second degree, identity theft in the third degree, grand larceny in
    41  the fourth degree, grand larceny in the third degree,  coercion  in  the
    42  second  degree  or coercion in the third degree as set forth in subdivi-
    43  sions one, two and three of section 135.60  of  the  penal  law  between
    44  spouses  or  former  spouses,  or  between  parent  and child or between
    45  members of the same family or household except that  if  the  respondent
    46  would not be criminally responsible by reason of age pursuant to section
    47  30.00  of  the  penal  law,  then  the family court shall have exclusive
    48  jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
    49  election  to  proceed  in  family court, the criminal court shall not be
    50  divested of jurisdiction to hear a family offense proceeding pursuant to
    51  this  section.  For  purposes  of  this  section,  "disorderly  conduct"
    52  includes disorderly conduct not in a public place.  For purposes of this
    53  section,  "members  of  the  same family or household" with respect to a
    54  proceeding in the criminal courts shall mean the following:
        A. 2056--B                          3
 
     1    § 3. The opening paragraph of subdivision 1  of  section  812  of  the
     2  family  court  act,  as amended by section 5 of part NN of chapter 55 of
     3  the laws of 2018, is amended to read as follows:
     4    The  family court and the criminal courts shall have concurrent juris-
     5  diction over any  proceeding  concerning  acts  which  would  constitute
     6  disorderly conduct, unlawful dissemination or publication of an intimate
     7  image,  harassment in the first degree, harassment in the second degree,
     8  aggravated harassment in the second degree, sexual misconduct,  forcible
     9  touching,  sexual  abuse in the third degree, sexual abuse in the second
    10  degree as set forth in subdivision one of section 130.60  of  the  penal
    11  law, stalking in the first degree, stalking in the second degree, stalk-
    12  ing  in  the  third  degree,  stalking  in  the  fourth degree, criminal
    13  mischief, menacing in the second degree, menacing in the  third  degree,
    14  reckless endangerment, criminal obstruction of breathing or blood circu-
    15  lation,  strangulation  in the second degree, strangulation in the first
    16  degree, assault in the second degree, assault in the  third  degree,  an
    17  attempted assault, identity theft in the first degree, identity theft in
    18  the  second degree, identity theft in the third degree, grand larceny in
    19  the fourth degree, grand larceny in the third degree,  coercion  in  the
    20  second  degree  or coercion in the third degree as set forth in subdivi-
    21  sions one, two and three of section 135.60  of  the  penal  law  between
    22  spouses  or  former  spouses,  or  between  parent  and child or between
    23  members of the same family or household except that  if  the  respondent
    24  would not be criminally responsible by reason of age pursuant to section
    25  30.00  of  the  penal  law,  then  the family court shall have exclusive
    26  jurisdiction  over  such  proceeding.  Notwithstanding  a  complainant's
    27  election  to  proceed  in  family court, the criminal court shall not be
    28  divested of jurisdiction to hear a family offense proceeding pursuant to
    29  this section. In any proceeding pursuant to this article, a court  shall
    30  not  deny  an  order of protection, or dismiss a petition, solely on the
    31  basis that the acts or events alleged are not relatively contemporaneous
    32  with the date of the petition, the conclusion of the fact-finding or the
    33  conclusion of the dispositional hearing. For purposes of  this  article,
    34  "disorderly  conduct" includes disorderly conduct not in a public place.
    35  For purposes of this article, "members of the same family or  household"
    36  shall mean the following:
    37    §  4.  The civil rights law is amended by adding a new section 52-b to
    38  read as follows:
    39    § 52-b. Private right of action for unlawful dissemination or publica-
    40  tion of an intimate image. 1.  Any person depicted in a still  or  video
    41  image,  regardless  of  whether or not the original still or video image
    42  was consensually obtained, shall have a cause of action against an indi-
    43  vidual who, for the purpose of  harassing,  annoying  or  alarming  such
    44  person,  disseminated  or  published,  or  threatened  to disseminate or
    45  publish, such still or video image, where such image:
    46    a. was taken when such person had a reasonable expectation of privacy;
    47  and
    48    b. depicts (i) an unclothed or exposed intimate part of  such  person;
    49  or  (ii)  such person engaging in sexual conduct, as defined in subdivi-
    50  sion ten of section 130.00 of the penal law, with another person; and
    51    c. was disseminated or published, or threatened to be disseminated  or
    52  published, without the consent of such person.
    53    2.  In  any  action  commenced  pursuant  to  subdivision  one of this
    54  section, the finder of fact, in its  discretion,  may  award  injunctive
    55  relief,  punitive  damages,  compensatory  damages  and reasonable court
    56  costs and attorney's fees.
        A. 2056--B                          4
 
     1    3. This section shall not apply to the following:
     2    a. the reporting of unlawful conduct;
     3    b.  dissemination  or  publication of an intimate still or video image
     4  made during lawful  and  common  practices  of  law  enforcement,  legal
     5  proceedings or medical treatment;
     6    c.  images  involving  voluntary  exposure  in  a public or commercial
     7  setting;
     8    d. dissemination or publication of an intimate still  or  video  image
     9  made for a legitimate public purpose; or
    10    e. providers of an interactive computer service for images provided by
    11  another  person.  For  purposes of this paragraph, "interactive computer
    12  service" shall mean any information service, system or  access  software
    13  provider that enables computer access by multiple users to that computer
    14  server,  including  specifically,  a service that provides access to the
    15  internet and such systems operated or services offered by  libraries  or
    16  educational institutions.
    17    4.  Any  person  depicted  in  a  still or video image that depicts an
    18  unclothed or exposed intimate part of such person, or such person engag-
    19  ing in sexual conduct as defined in subdivision ten of section 130.00 of
    20  the penal law with another person, which is  disseminated  or  published
    21  without  the  consent of such person and where such person had a reason-
    22  able expectation of privacy, may maintain an action or special  proceed-
    23  ing for a court order to require any website that is subject to personal
    24  jurisdiction  under  subdivision  five  of  this  section to permanently
    25  remove such still or video image; any such court order granted  pursuant
    26  to  this  subdivision  may  direct  removal  only  as to images that are
    27  reasonably within such website's control.
    28    5. a. Any website that hosts or transmits  a  still  or  video  image,
    29  viewable  in  this  state,  taken  under  circumstances where the person
    30  depicted had a reasonable expectation of privacy, which depicts:
    31    (i) an unclothed or exposed  intimate  part,  as  defined  in  section
    32  245.15 of the penal law, of a resident of this state; or
    33    (ii) a resident of this state engaging in sexual conduct as defined in
    34  subdivision  ten of section 130.00 of the penal law with another person;
    35  and
    36    b. Such still or video image is  hosted  or  transmitted  without  the
    37  consent  of  such  resident  of this state, shall be subject to personal
    38  jurisdiction in a civil action in  this  state  to  the  maximum  extent
    39  permitted under the United States constitution and federal law.
    40    6. A cause of action or special proceeding under this section shall be
    41  commenced the later of either:
    42    a. three years after the dissemination or publication of an image; or
    43    b.  one  year  from  the date a person discovers, or reasonably should
    44  have discovered, the dissemination or publication of such image.
    45    7. Nothing herein shall be read to require a prior criminal complaint,
    46  prosecution or conviction to establish the  elements  of  the  cause  of
    47  action provided for by this section.
    48    8.  The  provisions  of this section are in addition to, but shall not
    49  supersede, any other rights or remedies available in law or equity.
    50    9. If any provision of this section or its application to  any  person
    51  or  circumstance  is held invalid, the invalidity shall not affect other
    52  provisions or applications of this section which  can  be  given  effect
    53  without  the  invalid  provision  or  application,  and  to this end the
    54  provisions of this section are severable.
    55    § 5. This act shall take effect on the sixtieth  day  after  it  shall
    56  have become a law.