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What Are The Penalties For Violating Michigan’s “Revenge Porn” Statute?

 

The proliferation of mobile internet access, camera phones and social media has made the distribution of sexually explicit material easier than ever.  Some people take (or allow others to take) nude or erotic photographs or videos of themselves to disseminate to intimate partners.  However, when these intimate relationships end or the explicit photographs or videos fall into the wrong hands, there is a great opportunity for mischief.  Possessors of the sexual material may distribute the images or videos without the subject’s permission to blackmail, punish, coerce or silence that person.  This practice is often referred to as “revenge porn” and the number of reported instances to law enforcement is on the rise.

In response to civil lawsuits and media attention around “revenge porn”, the Michigan Legislature passed a statute in 2016 criminalizing the dissemination of sexually explicit visual material of another person without their permission.  This statute also covers scenarios where the motive is not revenge, such as hackers accessing private databases and distributing sexual materials for profit or fame.

A person shall not intentionally and with the intent to threaten, coerce, or intimidate disseminate any sexually explicit visual material of another person, contrary to MCL 750.145e(1), if ALL of the following conditions apply:

  • (a) The other person is not less than 18 years of age.
  • (b) The other person is identifiable from the sexually explicit visual material itself or information displayed in connection with the sexually explicit visual material. This subdivision does not apply if the identifying information is supplied by a person other than the disseminator.
  • (c) The person obtains the sexually explicit visual material of the other person under circumstances in which a reasonable person would know or understand that the sexually explicit visual material was to remain private.
  • (d) The person knows or reasonably should know that the other person did not consent to the dissemination of the sexually explicit visual material.

The following definitions apply to this statute:

  • “Disseminate” means post, distribute, or publish on a computer device, computer network, website, or other electronic device or medium of communication. MCL 750.145e(5)(a).
  • “Nudity” means displaying a person’s genitalia or anus or, if the person is a female, her nipples or areola. MCL 750.145e(5)(b).
  • “Sexually explicit visual material” means a photograph or video that depicts nudity, erotic fondling, sexual intercourse, or sadomasochistic abuse. MCL 750.145e(5)(c).

The “revenge porn” statute does not apply to any of the following:

  • A person who is providing an “interactive computer service” (e.g. provides Internet connectivity, hosts a website, chat room or message board), mobile phone carrier services, a “commercial mobile service” (e.g. internet café, free Wi-Fi), or direct-to-home satellite service or cable TV services. MCL 750.145e(2)(a).
  • A person who disseminates sexually explicit visual material that is part of a news report or commentary or an artistic or expressive work, such as a performance, work of art, literary work, theatrical work, musical work, motion picture, film, or audiovisual work. MCL 750.145e(2)(b).
  • A law enforcement officer, or a corrections officer or guard in a correctional facility or jail, who is engaged in the official performance of his or her duties. MCL 750.145e(2)(c).
  • A person disseminating sexually explicit visual material in the reporting of a crime. MCL 750.145e(2)(d).

A person who violates this statute is guilty of a crime and punishable as follows:

  • For a first violation, the person is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both. MCL 750.145f(a).
  • For a second or subsequent violation, the person is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both. MCL 750.145f(b).
  • This statute does not prohibit a person from being charged with, convicted of, or punished for another violation of law committed by that person while violating or attempting to violate this statute (e.g. stalking, aggravated stalking, cyberstalking, etc.). MCL 750.145e(3).

This offense is not a listed offense that requires registration under Michigan’s Sex Offender Registration Act.

If you are facing a prosecution for violating the “revenge porn” statute, you need an experienced criminal defense attorney in your corner.  There may be several defenses available to you to combat this accusation.  The alleged victim may not be identifiable from the images or videos disseminated.  The defendant may have obtained the photograph from social media or some other semi-public source where it wasn’t apparent that the alleged victim wished to keep it private.  Finally, it may not even be provable that the image or video was even disseminated by the defendant.  Once explicit materials are on the internet, they are often copied and resubmitted from so many other sources that it is impossible to determine their origin.  Remember, the prosecutor has the burden of proof in showing that a crime was committed.  A skilled lawyer can hold the prosecution to this high standard and use this leverage to either negotiate a plea deal for a lesser offense or even secure an acquittal at trial.

If you or a loved one is accused of disseminating sexually explicit material without permission or any other criminal act, then do not hesitate to contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC to start your aggressive defense today.

 

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