First, imagine a scenario where a couple is stuck in their home because of the coronavirus. They are drinking some cocktails, and they get the idea to make some “home movies” of the more risqué variety.  Skip ahead a month and they are sick of sheltering in place and even more sick of each other and they have a nasty break up. One of them gets drunk and decides to send one of the “home videos” to all of their friends as a mean “joke.”

In Missouri, this is not a joke. It is a crime under RSMo. §573.110.2. https://revisor.mo.gov/main/OneSection.aspx?section=573.110&bid=34865

The common term for this is “revenge porn.” And Governor Greitens actually signed the “revenge porn” law just hours before he left office. https://www.news-leader.com/story/news/politics/2018/06/01/outgoing-gov-eric-greitens-signs-revenge-porn-law/664920002/

RSMo. §573.110.2 does not actually use the term “revenge porn.” Rather, RSMo. §573.110.2 refers to the criminal conduct as “nonconsensual dissemination of private sexual images.” And that makes more sense because revenge is not required and is usually not present in the majority of cases that involve this criminal conduct. Under RSMo. §573.110.2, a person commits the offense of nonconsensual dissemination of private sexual images if he or she:

(1)  Intentionally disseminates with the intent to harass, threaten, or coerce an image of another person:

(a)  Who is at least eighteen years of age;

(b)  Who is identifiable from the image itself or information displayed in connection with the image; and

(c)  Who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part;

(2)  Obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and

(3)  Knows or should have known that the person in the image did not consent to the dissemination.

 

The statute defines “sexual act” as “sexual penetration, masturbation, or sexual activity.” It then further defines “sexual activity” to include the follows acts:

(a)  Knowing touching or fondling by the victim or another person or animal, either directly or through clothing, of the sex organs, anus, or breast of the victim or another person or animal for the purpose of sexual gratification or arousal;

(b)  Transfer or transmission of semen upon any part of the clothed or unclothed body of the victim for the purpose of sexual gratification or arousal of the victim or another;

(c)  Act of urination within a sexual context;

(d)  Bondage, fetter, sadism, or masochism; or

(e)  Sadomasochism abuse in any sexual context.

 

The statute also defines “intimate parts” as “the fully unclothed, partially unclothed, or transparently clothed genitals, pubic area, or anus or, if the person is female, a partially or fully exposed nipple, including exposure through transparent clothing[.]”

There are a few very limited exceptions such as disseminating the image to law enforcement to report the unlawful conduct.

How is nonconsensual dissemination of private sexual images different than invasion of privacy under RSMo. §565.252 https://revisor.mo.gov/main/OneSection.aspx?section=565.252 ?

One of the main differences is that consent to have the image made in the first place may have been given when a person is charged with nonconsensual dissemination of private sexual images but such consent was not given for invasion of privacy. Remember in the scenario described above for nonconsensual dissemination of private sexual images, both of the people consented to making the home video for their own private use.

Another difference is that invasion of privacy occurs when one person creates a photograph, film, videotape, or other image of another person who is partially or fully nude without that person’s consent or creates the image under or through the clothing worn by that other person for the purpose of viewing the body of or the undergarments worn by that other person without that person’s consent. Thus, unlike nonconsensual dissemination of private sexual images that requires an image depicting a “sexual act” or “intimate parts” that are exposed, invasion of privacy requires an image depicting less – e.g., an image of undergarments is enough.

The punishment for invasion of privacy and nonconsensual dissemination of private sexual images is also different. Invasion of privacy is a class A misdemeanor unless a few additional circumstances are present, and one of those is distributing or disseminating the image. If an image is disseminated, it is a class E felony. For example, secretly taking a photo of a woman in her undergarments is a class A misdemeanor if you keep it to yourself, but it becomes a class E felony punishable up to four years in prison if you send the photo to your friend.

Nonconsensual dissemination of private sexual images is a more serious felony. As a class D felony, a person convicted of this crime faces up to 7 years in prison.

Moreover, the nonconsensual dissemination of private sexual images statute adds an additional penalty that is interesting:

[T]he person in violation of the provisions of this section shall also be subject to a private cause of action from the depicted person.  Any successful private cause of action brought under this subsection shall result in an award equal to ten thousand dollars or actual damages, whichever is greater, and in addition shall include attorney’s fees.  Humiliation or embarrassment shall be an adequate show that the plaintiff has incurred damages; however, no physical manifestation of either humiliation or embarrassment is necessary for damages to be shown.

Additionally, the invasion of privacy statute makes it clear that sex offender registration is required if the victim is less than 18 years old. But the sex offender registration statute does not specifically mention nonconsensual dissemination of private sexual images, and it appears that prosecutors disagree as to whether it is a registerable offense. https://revisor.mo.gov/main/OneSection.aspx?section=589.414

Prison time, plus a minimum of $10,000.00 civil damages, plus attorney’s fees for the person whose image is sent out, plus possible sex offender registration are all serious penalties.

So, if you have been charged with nonconsensual dissemination of private sexual images or with invasion of privacy, call Carver, Cantin & Mynarich, LLC to speak to one of the attorneys.

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