Whether the issue is infidelity or lack of intimacy, Minnesota law generally stays out of romantic and sexual relationship problems, but in August of 2016 that all changed. In 2016, Minnesota became the 33rd state to criminalize “revenge porn.” If you find yourself involved in a revenge porn accusation, you’re going to want to have the right legal representation. Contact Karalus Law to have the best criminal defense attorney in Minnesota on your side.
What is Revenge Porn?
The newly enacted statute criminalizes disseminating images of another person engaged in a sexual act or whose intimate parts are exposed when:
- The person is identifiable.
- The disseminating party knows or should know the person in the image does not consent to the dissemination.
- The disseminating party knows or should know the photo was created under circumstances where the person in the photo had a reasonable expectation of privacy.¹
Penalties
A person who violates the above conditions is guilty of a gross misdemeanor which generally means the person will serve little or no time in prison. However, a person can serve up to three years in prison if any of the following conditions exist.
- The person in the image suffers financial loss from the dissemination of the image.
- The person disseminating the image tries to profit from it.
- The image is disseminated from an online source maintained by the disseminator.
- The image is posted by the disseminator on a website.
- The image is posted with the intent to harass the person in the image.
- The image is stolen, is procured by hacking or is captured without the knowledge of the person in the image.
- The person disseminating the image has been convicted of revenge porn previously. ²
A person who claims to be a victim of revenge porn might also file a civil lawsuit to get compensation for any personal damage that they claim to have suffered. Even if you are found innocent in a criminal court, the likelihood of losing in a civil case is higher because the burden of proof for the prosecution/plaintiff is lower. Even if you are facing a purely civil suit, contacting a revenge porn attorney is your best defense to a potential criminal charge.
Defenses
It is important to note that it is not a defense that a person consented to the image being taken if they did not consent to the dissemination of the image.
However, not all hope is lost. Even if it is proven a person did actually engage in what would normally be considered revenge porn, the following exceptions apply:
- The dissemination occurred for the purpose of furthering a criminal investigation.
- The dissemination was done while seeking medical or mental health treatment.
- The image was captured in public or was obtained in a commercial setting.
- The image relates to a matter of public, scientific, or educational interest.
- The dissemination is made for legal proceedings. ³
Legal Challenges to Revenge Porn
Since this is a newly enacted law, the court system and criminal defense lawyers are still trying to grapple with some difficult constitutional questions related to revenge porn. Normally, disseminating photos is considered free speech, protected by the first amendment. Nude or sexual photos disseminated with the permission of the person in the photo is also legally protected free speech. This new law makes people consensually posting images vulnerable to the possibility of being convicted of violating the revenge porn law if the person in the photos subsequently changes their mind or decides to seek revenge for another wrong and the prior consent can’t be proven.
Additionally, there is no intent requirement related to the law. Generally, a person must intend to commit a serious crime in order to be charged for it. However, a person might accidentally disseminate private images and still be subject to the law. As storage of sexual images becomes increasingly prevalent on electronic devices, many Minnesotans could be an accidental tweet away from a serious criminal charge.
If you have found yourself being accused of revenge porn and are currently in need of a criminal defense attorney in Minnesota or Wisconsin, contact Karalus Law today.
¹ Minn. Stat. § 617.261 subd. 1.
² Minn. Stat. § 617.261 subd. 2.
³ Minn. Stat. § 617.261 subd. 5.
