A Raleigh County woman called the Raleigh Emergency Operations Center Dec. 21 to ask for help.
Her ex-boyfriend, she said, was harassing her and threatening to post nude photographs of her on a social networking site.
Dispatchers reported the complaint to Raleigh Sheriff’s Office, but there was no law to prevent the online publication.
So-called “revenge porn” — publishing nude or sexual images of a person without the person’s written permission or even against the person’s verbally stated preference — isn’t illegal in West Virginia.
Raleigh County Sheriff Steve Tanner said revenge porn is nothing new to the state, but West Virginia doesn’t have clear laws.
“It’s always been a leverage tool to use on someone for a very long time,” said Tanner. “We’ve had numerous cases, before the Internet, of people threatening to take photographs and pass them out to her friends.”
Tanner said while it’s illegal to photograph a minor in a sexual situation under any circumstances and illegal to record an undressed adult without the adult’s consent, it isn’t illegal in the state to share a nude or sexual image of an ex-spouse or significant other if the domestic partner agreed to the photo at the time it was taken.
According to Leslie Mateer, sexual assault service coordinator and prevention educator for Women’s Resource Center in Beckley, publicly sharing nude images of someone else is a common way that abusers target ex-significant others.
“It’s a huge issue,” said Mateer. “Any way of sending that picture, hand-to-hand, e-mail, electronically, without someone’s permission should be illegal.
“But it’s not.”
Mateer said among her clients, victims are “horrified” and “humiliated” when abusers publicly and/or electronically post nude images without their consent.
“If they agreed to the pictures, it was for his or her purposes only,” said Mateer. “It was not to be shared.
“They didn’t want anybody else to see that, and the first thing they do is call the police, and the police have no action.
“They can’t take action because there’s no law to take action under.”
In many cases, abusers look at it as a way of controlling their victims, she said.
“I threaten you, ‘I’m going to post these or print these if you don’t come back to me,’” she said. “And if you don’t come back, I have to follow through, so I’m abusing you more.
“Then I get more contact because you’re calling me, yelling at me, wanting me to take these pictures down.”
Currently, local officers must work within the confines of domestic violence laws to protect victims of revenge porn.
Sheriff Tanner added that he’s “not convinced there isn’t a criminal element” in some instances of revenge porn, depending on the situation, but acknowledged that current state law doesn’t offer police a concrete basis for filing criminal charges against an ex or a stranger who publishes a nude photo without a subject’s consent.
Tanner encourages victims of revenge porn to “do everything to get a domestic violence petition” if the perpetrator is a domestic partner.
“That’s civil, not a criminal action, but it brings him in the court,” said Tanner.
He added that if any of the images involve minors, the perpetrator will immediately face criminal consequences.
Delegate Linda Sumner, R-Raleigh, verified that there are no current laws addressing the issue in the state.
“No one should be able to put nude pictures of you online without your permission,” she added.
Israel became the first country to criminalize revenge porn under its sexual harassment laws earlier this month, unofficially dubbing it “virtual rape” and making it punishable by up to five years in jail.
Electronic “revenge porn” is illegal in New Jersey and California, although California doesn’t cover “selfies,” or pictures that the victims have taken of themselves.
Maryland, Wisconsin and New York lawmakers are in the process of passing bills to make it illegal to share nude photos of another person over the Internet via text message, e-mail or any other public forum, without the person’s permission.
Mary Anne Franks, a University of Miami law professor, is helping several states draft legislation that makes it illegal to publish photos that depict adult genitalia and the adult female nipple and/or sexually explicit conduct without the person’s consent.
Franks said “revenge porn” victimizes those whose images are published.
“This conduct is a form of sexual abuse and very often also a form of domestic violence,” said Franks. “Disclosing intimate images of a person to the public forces that person to engage in non-consensual sexual activity.”
She characterized “revenge porn” as a civil rights issue, adding that female victims of revenge porn are “far more likely” to experience rape or death threats and to suffer damage to their careers and educational opportunities.
Some women have been fired after their images and names were e-mailed to bosses, according to online news sources.
“It undermines gender equality in much the same way that other forms of violence against women do,” said Franks. “Rape, domestic violence, sexual harassment and non-consensual pornography do more than just hurt individual victims.
“They encourage men to ignore women’s rights to their own bodies and to use sex to punish women whose behavior they wish to control,” she said. “These forms of gendered violence ...constrain (a woman’s) ability to live, work and participate freely in society.”
Several teens — such as 18-year-old Jesse Logan from Ohio — have been bullied and committed suicide after private photos were shared, according to national media reports.
“Because the damage is so severe and in many cases, impossible to undo, the emphasis must be on deterrence,” Franks said. “This is something only the criminal law can plausibly accomplish.”
Franks said the same principles that guard financial protection should be used to protect personal privacy.
“If you give your credit card to a waiter, you aren’t giving him permission to buy a yacht,” stated Franks.
Opponents of “revenge porn laws” argue that First Amendment rights which guarantee freedom of speech to journalists and citizens could be trampled by any laws that infringe on publication of legally obtained images.
The American Civil Liberties Union opposes the measures in a statement which reads, “The posting of otherwise lawful speech or images, even if offensive or emotionally distressing, is constitutionally protected.
“The speech must constitute a true threat or violate another otherwise lawful criminal law, such as stalking or harassment statute, in order to be made illegal.”
Florida lawmakers recently rejected a revenge porn bill due to First Amendment concerns.
Franks added that while she doesn’t personally support making distinctions between private and public citizens — adding that the distinction is becoming a legal blur with modern technology — she has helped draft a “public interest” exception for some states.
“It’s for states that were concerned about what I call the ‘Anthony Weiner’ problem,” she said, referencing a New York congressman who “sexted” images of himself to an adult woman.
“I can imagine some circumstances in which a sexually graphic image or video would be confidentially disclosed to a journalist to offer evidence of misconduct about which the public has a right to know, though I do not think it follows from this that the journalist should be allowed to disclose the actual, uncensored image.”
Raleigh prosecuting attorney Kristen Keller said that current state laws criminalize invading someone’s privacy if the person has a reasonable expectation of privacy in the situation — such as a public restroom.
But, she said, in cases that involve “selfies” (when subjects snap nude photos of themselves to share with a domestic partner), there is legally no longer an expectation of privacy.
“You might have a hope of privacy, but a reasonable expectation of privacy is different than a hope,” she said. “The best, really is, if you want to be sure your privacy isn’t invaded, don’t invade your own privacy.”
Keller said victims may sue for civil damages, but a civil suit further publicizes the photos.
To meet current criteria for criminal invasion of privacy, the state must be able to prove that a picture involving nudity or sex was intended to be private, said Keller.
“It may sound facetious, but if you are going to intentionally send nude pictures of yourself to your beloved, put something in writing,” Keller advised.
Both Keller and Mateer advised not to engage in sexting at all.
Police may seek juvenile petitions against minors who send or receive sexts in West Virginia.
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