But it’s hard to prosecute under California revenge porn law.
Rob Kardashian’s latest X-rated social-media rant could end up costing him more than just the usual online contempt — it could be considered a crime in California.
Kardashian, the reality-TV personality best known as the brother in the Kardashian-Jenner clan, attacked his estranged ex-fiance, Blac Chyna, on Wednesday in an especially repulsive way on Instagram and Twitter, posting pictures of her naked breasts, backside and genitals and accusing her in profane terms of sleeping with another man in « the same bed Chyna and I made our baby in. »
To scores of horrified readers, it smacked of revenge porn — the crime of posting intimate pictures or videos by a disgruntled spouse or lover without the other party’s consent and with the intent to inflict serious emotional distress.
Invasion of privacy laws have long been on the books but California is one of 38 states and the District of Columbia that have recently passed laws designed to combat revenge porn, a crime of the Internet Age. California’s law, Penal Code 647 (j) (4) PC, took effect in September 2014.
The crime is a misdemeanor and is punishable by six months in prison and a $1,000 fine. Also, regardless of whether a local district attorney prosecutes a defendant in a case — in Kardashian’s case, that would likely be the DA in busy Los Angeles County — an accuser can also bring a civil suit for money damages under the revenge-porn law.
« Attempting to slut-shame the mother of his child is truly sick behavior as the law recognizes, » says Lisa Bloom, the women’s rights lawyer who represented Mischa Barton in her recent successful civil suit against an ex to prevent revenge-porn images of her from being released. « I encourage Ms. Chyna to stand up for her rights as a woman to control which images of her own body will be made public. »
But prosecuting revenge porn under the law can be challenging, says Mitch Jackson, a California trial attorney and expert on social media and cyber bullying, because multiple elements must be proven for a conviction.
Did the defendant take pictures or videos of the victim’s intimate body parts with the mutual understanding that they will be kept confidential? Were those images distributed and was the victim identifiable? Did it cause serious emotional distress and was there intent? And did the victim, in fact, suffer distress?
« It appears straightforward but in reality it can be difficult to prove all four elements, » Jackson says. « There is something wrong with anybody sharing pictures without permission, true, but with this misdemeanor you have to show intent. »
And another wrinkle, he says: Did the victim truly suffer distress? TMZ reported that Chyna signaled she « liked » the pictures on Kardashian’s Instagram page. That could not be verified because Instagram took down the page for violating its community guidelines, hours after Kardashian posted the pictures. (He then posted the pictures on Twitter, which also bans revenge porn; the tweets were taken down by evening.)
But if it’s true that Chyna approved, then « this makes it tough to pursue criminally, » Jackson says.
In revenge porn cases, Jackson says, the pictures or videos almost always were created with mutual consent. It’s when one party releases those pictures or videos without the other’s consent that the crime occurs.
Thus, Jackson says, it matters whether a celebrity victim secretly consented to the distribution of the pictures or videos as a means to build a brand. It’s been known to happen, for instance, with sex tapes that are leaked, thus leading to later fame and fortune for the alleged victim.
Jackson thinks California’s law isn’t strong enough in its consequences and is among those pushing the legislature to tweak it.
« When it comes to social media, the law (in general) is 10 years behind the times, » Jackson says. « These kinds of cases help raise awareness that the consequences of this law are not severe enough. We’re finding that old laws need to be tweaked and new laws need to be enacted to serve as a deterrent so that other people don’ t do the same thing. »
Meanwhile, what do his Kardashian-Jenner relatives have to say about all of this? Nothing. Instead, his mother, Kris Jenner, tweeted a picture of Rob’s half-sister, Kendall Jenner, walking the runway at the Fendi show in Paris.
