A02056 Summary:
| BILL NO | A02056B |
| SAME AS | No Same As |
| SPONSOR | Braunstein |
| COSPNSR | Gunther, Weprin, Paulin, Otis, Buttenschon, Miller ML |
| MLTSPNSR | |
| Add §245.15, Pen L; amd §530.11, CP L; amd §812, Fam Ct Act; add §52-b, Civ Rts L | |
| Establishes the crime of unlawful dissemination or publication of an intimate image and creates a private right of action for such crime. | |
A02056 Actions:
| BILL NO | A02056B | |||||||||||||||||||||||||||||||||||||||||||||||||
| 01/22/2019 | referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
| 01/24/2019 | amend and recommit to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
| 01/24/2019 | print number 2056a | |||||||||||||||||||||||||||||||||||||||||||||||||
| 01/28/2019 | reported | |||||||||||||||||||||||||||||||||||||||||||||||||
| 01/31/2019 | advanced to third reading cal.27 | |||||||||||||||||||||||||||||||||||||||||||||||||
| 02/12/2019 | amended on third reading 2056b | |||||||||||||||||||||||||||||||||||||||||||||||||
A02056 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
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:
Go to topSTATE 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. LBD06276-09-9A. 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.