NY State Senate Bill 2015-S4450B

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 03, 2016	print number 4450b
May 03, 2016	amend (t) and recommit to codes
Feb 10, 2016	print number 4450a
Feb 10, 2016	amend and recommit to codes
Jan 06, 2016	referred to codes
Mar 20, 2015	referred to codes

Bill Amendments

Original

B (Active)

2015-S4450 - Details

See Assembly Version of this Bill:: A571
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §§250.70 & 250.75, Pen L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5949, A8214
2017-2018: S2725, A1641
2019-2020: A326

2015-S4450 - Summary

Establishes the crime of non-consensual dissemination of sexually explicit images as a class A misdemeanor.

2015-S4450 - Sponsor Memo

                                BILL NUMBER:S4450

TITLE OF BILL:

An  act  to amend the penal law, in relation to establishing the crime
of non-consensual disclosure of sexually explicit images

PURPOSE:

Relates to establishing the  crime  of  non-consensual  disclosure  of
sexually explicit images.

SUMMARY OF PROVISIONS:

Section  1 adds a new section, 250.70 to the New York Penal Law, which
provides that a person  is  guilty  of  non-consensual  disclosure  of
sexually  explicit  images  when  he or she intentionally or knowingly
discloses a photo, film, or videotape of another person whose intimate
parts are exposed or who is  engaged  in  an  act  of  sexual  contact
without  such  person's  consent,  when a reasonable person would have
known that the person  depicted  would  not  have  consented  to  such
disclosure.

Additionally, the disclosure must be without such person's consent and
under  circumstances  in which the person has a reasonable expectation
of privacy, meaning that the person has consented to  the  capture  or

possession of an image within the context of a private or confidential
relationship.

250.70.1  provides  definitions  of  "disclose",  "intimate parts" and
"sexual contact."

250.70.2 provides exceptions for lawful and common  practices  of  law
enforcement,  disclosures  made  for  a legitimate public purpose, and
situations  involving  voluntary  exposure  in  public  or  commercial
settings, and disclosures made in the reporting of unlawful activity.

250.70.3  Non-consensual  disclosure  of sexually explicit images is a
class A misdemeanor.

JUSTIFICATION:

In  an  era  of  increased  text  messaging,  social  networking,  and
emailing,  people  in  intimate relationships sometimes share pictures
with each other, some of which may be  sexually  explicit  in  nature.
However,  recipients  of  these  images  do not always keep the images
within the confines of an intimate relationship, and have the  ability
to widely disseminate the photos on the Internet.

The  non-consensual  disclosure of such sexually explicit images, also
known as "revenge porn" is often provided to  Internet  websites,  and
features  photos sometimes accompanied by disparaging descriptions and
identifying details, such as where the victims live and work, as  well
as links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims.  These photographs have extensive negative effects, including


destroying  future  intimate   relationships   and   educational   and
employment opportunities. Victims are routinely threatened with sexual
assault,  stalked,  harassed,  or  fired from jobs. New York's current
distribution  of  unlawful  surveillance  law only governs photographs
taken  without  the  subject's  consent.  This   bill   would   govern
photographs  that  are  captured consensually, as part of an intimate,
private relationship, which are later disclosed by  an  individual  to
the public without the consent of the individual photographed.

Criminalization  is preferable to civil suits by victims because civil
suits do not deter those who upload or disclose  new  images  after  a
civil  suit  has  ended.  Furthermore,  a lengthy trial is emotionally
exhausting and prohibitively expensive. Moreover,  the  websites  that
distribute  nonconsensual  pornography  are  given  broad immunity for
civil liability under federal law through the  Communications  Decency
Act.  Therefore,  criminalizing disclosure of these photos may prevent
websites from benefiting from the harmful images.

This bill is also narrowly drawn  so  as  not  to  infringe  on  First
Amendment rights, as there is no constitutional protection afforded to
individuals  who  consume  or  distribute  sexually explicit images of
individuals without their consent. The bill  also  creates  exceptions
for lawful activity.

LEGISLATIVE HISTORY:

2014 - S. 5949a - Rules Committee/A. 8214a - Codes Committee.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This  act  shall  take effect on the first of November next succeeding
the date on which it shall have become a law.

2015-S4450 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4450

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             March 20, 2015
                               ___________

Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in relation to establishing the crime  of
  non-consensual disclosure of sexually explicit images

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The penal law is amended by adding a new section 250.70  to
read as follows:
S 250.70 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES.
  A  PERSON  IS GUILTY OF NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT
IMAGES WHEN HE OR SHE  INTENTIONALLY  AND KNOWINGLY DISCLOSES  A  PHOTO-
GRAPH,  FILM,  VIDEOTAPE,  RECORDING,  OR  ANY OTHER REPRODUCTION OF THE
IMAGE OF ANOTHER PERSON WHOSE INTIMATE  PARTS  ARE  EXPOSED  OR  WHO  IS
ENGAGED  IN AN ACT OF SEXUAL CONTACT WITHOUT SUCH PERSON'S CONSENT, WHEN
A REASONABLE PERSON WOULD HAVE KNOWN THAT THE PERSON DEPICTED WOULD  NOT
HAVE  CONSENTED TO SUCH DISCLOSURE, AND UNDER CIRCUMSTANCES IN WHICH THE
PERSON HAS A REASONABLE EXPECTATION  OF  PRIVACY.    A  PERSON  WHO  HAS
CONSENTED TO THE CAPTURE OR POSSESSION OF AN IMAGE WITHIN THE CONTEXT OF
A  PRIVATE OR CONFIDENTIAL RELATIONSHIP RETAINS A REASONABLE EXPECTATION
OF PRIVACY WITH REGARD TO DISCLOSURE BEYOND THAT RELATIONSHIP.
  1. FOR THE PURPOSES OF THIS SECTION:
  (A) "DISCLOSE" MEANS TO SELL, MANUFACTURE, GIVE, PROVIDE, LEND, TRADE,
MAIL, DELIVER, TRANSFER, PUBLISH, DISTRIBUTE, CIRCULATE, DISCLOSE, PRES-
ENT, EXHIBIT, ADVERTISE OR OFFER.
  (B) "INTIMATE PARTS" MEANS THE NAKED GENITALS, PUBIC  AREA,  BUTTOCKS,
OR FEMALE ADULT NIPPLE OF THE PERSON.
  (C) "SEXUAL CONTACT" MEANS SEXUAL INTERCOURSE, INCLUDING GENITAL-GENI-
TAL,  ORAL-GENITAL,  ANAL-GENITAL, OR ORAL-ANAL, WHETHER BETWEEN PERSONS
OF THE SAME OR OPPOSITE SEX.
  2. THIS SECTION SHALL NOT APPLY TO:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02341-01-5

S. 4450                             2

  (A) LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT,  CRIMINAL  REPORT-
ING,  OR  LEGAL  PROCEEDINGS,  OR  DISCLOSURES  MADE IN THE REPORTING OF
UNLAWFUL ACTIVITY; OR
  (B)  SITUATIONS  INVOLVING  VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
SETTINGS, OR DISCLOSURES MADE FOR A LEGITIMATE PUBLIC PURPOSE.
  NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES  IS  A  CLASS  A
MISDEMEANOR.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

2015-S4450A - Details

See Assembly Version of this Bill:: A571
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §§250.70 & 250.75, Pen L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5949, A8214
2017-2018: S2725, A1641
2019-2020: A326

2015-S4450A - Summary

Establishes the crime of non-consensual dissemination of sexually explicit images as a class A misdemeanor.

2015-S4450A - Sponsor Memo

                                 BILL NUMBER:  S4450A

 TITLE OF BILL :

An act to amend the penal law, in relation to establishing the crime
of non-consensual disclosure of sexually explicit images

 PURPOSE :

Relates to establishing the crime of non-consensual disclosure of
sexually explicit images.

 SUMMARY OF PROVISIONS :

Section 1 adds a new section, 250.70 to the New York Penal Law, which
provides that a person is guilty of non-consensual disclosure of
sexually explicit images when he or she intentionally or knowingly
discloses a photo, film, or videotape of another person whose intimate
parts are exposed or who is engaged in an act of sexual contact
without such person's consent, when a reasonable person would have
known that the person depicted would not have consented to such
disclosure.

Additionally, the disclosure must be without such person's consent and
under circumstances in which the person has a reasonable expectation
of privacy, meaning that the person has consented to the capture or

possession of an image within the context of a private or confidential
relationship.

250.70.1 provides definitions of "disclose", "intimate parts" and
"sexual contact."

250.70.2 provides exceptions for lawful and common practices of law
enforcement, disclosures made for a legitimate public purpose, and
situations involving voluntary exposure in public or commercial
settings, and disclosures made in the reporting of unlawful activity.

250.70.3 Non-consensual disclosure of sexually explicit images is a
class A misdemeanor.

250.75 is also added to the penal law to allow for a civil cause of
action for the non-consensual disclosure of sexually explicit images.

The statute of limitations to bring suit is five years. Nothing in the
section requires that a criminal charge be brought or a criminal
conviction obtained as a condition of bringing the civil cause of
action. In addition to injunctive relief; the plaintiff is entitled to
actual damages, punitive damages, and reasonable court costs and
attorney fees. The actual damages are the higher of either (1) the
calculated actual damages at the rate of $1,000 per day for each day
the images were viewable up to thirty days, or each time a threat to
distribute was made, or an image fraudulently obtained, or (2)
$10,000. There are several affirmative defenses to the civil suit
included in this legislation. Additionally, 250.75.4 allows the
plaintiff's identifying information to be redacted and to proceed with
the case under a pseudonym.  The court must inform the plaintiff of
the option to proceed under a pseudonym at the earliest possible point
and shall maintain records in a manner that protects the plaintiff's
confidentiality.

 JUSTIFICATION :

In an era of increased text messaging, social networking, and
emailing, people in intimate relationships sometimes share pictures
with each other, some of which may be sexually explicit in nature.
However, recipients of these images do not always keep the images
within the confines of an intimate relationship, and have the ability
to widely disseminate the photos on the Internet.

The non-consensual disclosure of such sexually explicit images, also
known as "revenge porn" is often provided to Internet websites, and
features photos sometimes accompanied by disparaging descriptions and
identifying details, such as where the victims live and work, as well
as links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims. These photographs have extensive negative effects, including
destroying future intimate relationships and educational and
employment opportunities. Victims are routinely threatened with sexual
assault, stalked, harassed, or fired from jobs. New York's current
distribution of unlawful surveillance law only governs photographs
taken without the subject's consent. This bill would govern
photographs that are captured consensually, as part of an intimate,
private relationship, which are later disclosed by an individual to
the public without the consent of the individual photographed.

Criminalization is preferable to civil suits by victims because civil
suits do not deter those who upload or disclose new images after a
civil suit has ended. Furthermore, a lengthy trial is emotionally
exhausting and prohibitively expensive. Moreover, the websites that
distribute nonconsensual pornography are given broad immunity for
civil liability under federal law through the Communications Decency
Act. Therefore, criminalizing disclosure of these photos may prevent
websites from benefiting from the harmful images.

However, because New York relies on common law to pursue a civil case,
including the torts of harassment and intentional infliction of
emotional distress, a civil suit is often difficult to pursue and win.
As such, this legislation adds a civil cause of action for
non-consensual disclosure of sexually explicit images that would
provide recourse to victims. The civil cause of action is designed to
work in conjunction with the criminal law, and does not require that a
criminal conviction or charge be obtained in order to proceed. The
victim will have a choice whether to pursue a criminal or civil case,
or both. Additionally, victims of non-consensual pornography have five
years to bring a suit for the nonconsensual disclosure of sexually
explicit images.

The criminal portion of the bill is also narrowly drawn so as not to
infringe on First Amendment rights, as there is no constitutional
protection afforded to individuals who consume or distribute sexually
explicit images of individuals without their consent. The bill also
creates exceptions for lawful activity.

 LEGISLATIVE HISTORY :

2014 - S. 5949a - Rules Committee/A. 8214a - Codes Committee.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect on the first of November next succeeding
the date on which it shall have become a law.

2015-S4450A - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4450--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             March 20, 2015
                               ___________

Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT to amend the penal law, in relation to establishing the crime of
  non-consensual disclosure of sexually explicit images

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. The penal law is amended by adding two new sections 250.70
and 250.75 to read as follows:
S 250.70 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES.
  A PERSON IS GUILTY OF NON-CONSENSUAL DISCLOSURE OF  SEXUALLY  EXPLICIT
IMAGES  WHEN  HE OR SHE  INTENTIONALLY  AND KNOWINGLY DISCLOSES A PHOTO-
GRAPH, FILM, VIDEOTAPE, RECORDING, OR  ANY  OTHER  REPRODUCTION  OF  THE
IMAGE  OF  ANOTHER  PERSON  WHOSE  INTIMATE  PARTS ARE EXPOSED OR WHO IS
ENGAGED IN AN ACT OF SEXUAL CONTACT WITHOUT SUCH PERSON'S CONSENT,  WHEN
A  REASONABLE PERSON WOULD HAVE KNOWN THAT THE PERSON DEPICTED WOULD NOT
HAVE CONSENTED TO SUCH DISCLOSURE, AND UNDER CIRCUMSTANCES IN WHICH  THE
PERSON  HAS  A  REASONABLE  EXPECTATION  OF  PRIVACY.   A PERSON WHO HAS
CONSENTED TO THE CAPTURE OR POSSESSION OF AN IMAGE WITHIN THE CONTEXT OF
A PRIVATE OR CONFIDENTIAL RELATIONSHIP RETAINS A REASONABLE  EXPECTATION
OF PRIVACY WITH REGARD TO DISCLOSURE BEYOND THAT RELATIONSHIP.
  1. FOR THE PURPOSES OF THIS SECTION:
  (A) "DISCLOSE" MEANS TO SELL, MANUFACTURE, GIVE, PROVIDE, LEND, TRADE,
MAIL, DELIVER, TRANSFER, PUBLISH, DISTRIBUTE, CIRCULATE, DISCLOSE, PRES-
ENT, EXHIBIT, ADVERTISE OR OFFER.
  (B)  "INTIMATE  PARTS" MEANS THE NAKED GENITALS, PUBIC AREA, BUTTOCKS,
OR FEMALE ADULT NIPPLE OF THE PERSON.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02341-09-6

S. 4450--A                          2

  (C) "SEXUAL CONTACT" MEANS SEXUAL INTERCOURSE, INCLUDING GENITAL-GENI-
TAL, ORAL-GENITAL, ANAL-GENITAL, OR ORAL-ANAL, WHETHER  BETWEEN  PERSONS
OF THE SAME OR OPPOSITE SEX.
  2. THIS SECTION SHALL NOT APPLY TO:
  (A)  LAWFUL  AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT-
ING, OR LEGAL PROCEEDINGS, OR  DISCLOSURES  MADE  IN  THE  REPORTING  OF
UNLAWFUL ACTIVITY; OR
  (B)  SITUATIONS  INVOLVING  VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
SETTINGS, OR DISCLOSURES MADE FOR A LEGITIMATE PUBLIC PURPOSE.
  NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES  IS  A  CLASS  A
MISDEMEANOR.
S 250.75 CIVIL CAUSE OF ACTION FOR NON-CONSENSUAL DISCLOSURE OF SEXUALLY
           EXPLICIT IMAGES.
  1.  A  CIVIL  CAUSE  OF  ACTION  LIES  AGAINST A PERSON WHO DISCLOSES,
THREATENS TO DISCLOSE AN IMAGE OF ANOTHER PERSON IDENTIFIABLE  FROM  THE
IMAGE  ITSELF  OR INFORMATION DISPLAYED IN CONNECTION WITH THE IMAGE AND
WHOSE INTIMATE PARTS ARE EXPOSED OR IS ENGAGED IN SEXUAL CONDUCT WITHOUT
THAT OTHER PERSON'S CONSENT, IF THE ACTOR:
  (A) OBTAINED THE IMAGE  OR  IMAGES  UNDER  CIRCUMSTANCES  IN  WHICH  A
REASONABLE  PERSON WOULD KNOW OR UNDERSTAND THAT THE IMAGE WAS TO REMAIN
PRIVATE, INCLUDING BUT NOT LIMITED TO IMAGES SHARED WITHIN  THE  CONTEXT
OF  A  CONFIDENTIAL  RELATIONSHIP  THAT  WERE THEN DISCLOSED BEYOND SUCH
RELATIONSHIP; OR
  (B) KNOWINGLY OBTAINED THE IMAGE OR IMAGES UNDER  FALSE  PRETENSES  OR
WITHOUT  AUTHORIZATION  OR  BY  EXCEEDING AUTHORIZED ACCESS TO PROPERTY,
ACCOUNTS, MESSAGES, FILES, DEVICES, OR RESOURCES.
  2. THE FOLLOWING AFFIRMATIVE DEFENSE SHALL APPLY IF:
  (A) THE DISTRIBUTED MATERIAL  WAS  CREATED  OR  DISTRIBUTED  UNDER  AN
AGREEMENT BY THE PERSON APPEARING IN THE MATERIAL FOR ITS PUBLIC USE AND
DISTRIBUTION; OR
  (B)  THE  DISTRIBUTED MATERIAL CONSTITUTES A MATTER OF PUBLIC CONCERN,
LAWFUL AND COMMON PRACTICES  OF  LAW  ENFORCEMENT,  CRIMINAL  REPORTING,
LEGAL  PROCEEDINGS,  MEDICAL  TREATMENT,  OR  SCIENTIFIC  OR EDUCATIONAL
ACTIVITIES; OR
  (C) THE DISTRIBUTED MATERIAL  WAS  PHOTOGRAPHED,  FILMED,  VIDEOTAPED,
RECORDED,  OR  OTHERWISE  REPRODUCED IN A PUBLIC PLACE AND UNDER CIRCUM-
STANCES IN WHICH THE PERSON DEPICTED HAD NO  REASONABLE  EXPECTATION  OF
PRIVACY.
  3. IN ADDITION TO OTHER RELIEF AVAILABLE AT LAW, INCLUDING AN ORDER BY
THE  COURT  TO  DESTROY  ANY IMAGE OBTAINED OR DISCLOSED IN VIOLATION OF
THIS SECTION, AND TO PRESERVE DISCOVERABLE INFORMATION, AND  PRELIMINARY
AND PERMANENT INJUNCTIVE RELIEF, THE ACTOR SHALL BE LIABLE TO THE PLAIN-
TIFF FOR:
  (A)  ACTUAL  DAMAGES,  BUT  NOT  LESS  THAN  LIQUIDATED DAMAGES, TO BE
COMPUTED AT THE RATE OF ONE THOUSAND DOLLARS PER DAY FOR  EACH  DAY  THE
IMAGE  OR  IMAGES  WERE VIEWABLE OR EACH INSTANCE A THREAT TO DISTRIBUTE
WAS MADE OR AN IMAGE FRAUDULENTLY OBTAINED UP TO  THIRTY  DAYS,  OR  TEN
THOUSAND DOLLARS, WHICHEVER IS HIGHER; AND
  (B) PUNITIVE DAMAGES; AND
  (C) REASONABLE COURT COSTS AND ATTORNEYS' FEES.
  4.  IN  AN ACTION BROUGHT UNDER THIS SECTION, ALL IDENTIFYING INFORMA-
TION ABOUT THE PLAINTIFF  MAY  BE  REDACTED  FROM  PLEADINGS  AND  COURT
FILINGS  AND  THE PLAINTIFF MAY PROCEED UNDER PSEUDONYM; THE COURT SHALL
INFORM THE PLAINTIFF OF THE OPTION TO PROCEED  UNDER  PSEUDONYM  AT  THE
EARLIEST  POSSIBLE POINT AND SHALL MAINTAIN THE RECORDS IN A MANNER THAT
PROTECTS THE PLAINTIFF'S CONFIDENTIALITY.

S. 4450--A                          3

  5. THE FOLLOWING DEFINITIONS SHALL APPLY:  (A) "PERSONAL  INFORMATION"
INCLUDES,  BUT  IS  NOT LIMITED TO, NAME OR ANY PART THEREOF, ADDRESS OR
ANY  PART  THEREOF,  AGE,  NAMES  OF  FAMILY  MEMBERS,  MARITAL  STATUS,
RELATIONSHIP  TO DEFENDANT, RACE OR ETHNIC BACKGROUND, EMPLOYER, SCHOOL,
OR  URLS, SOCIAL MEDIA ACCOUNT USERNAMES, AND SCREENSHOTS RELATED TO THE
CAUSE OF ACTION;
  (B) "ACTUAL DAMAGES" INCLUDES, BUT IS NOT LIMITED TO, PAIN AND SUFFER-
ING, EMOTIONAL DISTRESS, ECONOMIC DAMAGES, AND LOST EARNINGS.
  6. A CAUSE OF ACTION BROUGHT UNDER THIS SECTION MAY BE BROUGHT NO MORE
THAN FIVE YEARS AFTER THE LAST DISCLOSURE OR INCIDENT.
  7. THE ACTOR'S CLAIM THAT THE DEPICTED PERSON IS A PUBLIC FIGURE SHALL
NOT BE SUFFICIENT TO ESTABLISH THE AFFIRMATIVE DEFENSE THAT DISTRIBUTION
CONSTITUTES A MATTER OF PUBLIC CONCERN.
  8. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THAT A CRIMI-
NAL CHARGE BE BROUGHT OR A CRIMINAL CONVICTION BE OBTAINED AS  A  CONDI-
TION  OF  BRINGING A CIVIL CAUSE OF ACTION OR RECEIVING A CIVIL JUDGMENT
PURSUANT TO THIS SECTION OR BE CONSTRUED TO  REQUIRE  THAT  ANY  OF  THE
RULES  GOVERNING  A  CRIMINAL PROCEEDING BE APPLICABLE TO ANY SUCH CIVIL
ACTION.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

co-Sponsors

2015-S4450B (ACTIVE) - Details

See Assembly Version of this Bill:: A571
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §§250.70 & 250.75, Pen L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5949, A8214
2017-2018: S2725, A1641
2019-2020: A326

2015-S4450B (ACTIVE) - Summary

Establishes the crime of non-consensual dissemination of sexually explicit images as a class A misdemeanor.

2015-S4450B (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4450B

 TITLE OF BILL :

An act to amend the penal law, in relation to establishing the crime
of non-consensual dissemination of sexually explicit images

 PURPOSE OR GENERAL IDEA OF BILL :

Relates to establishing the crime of non-consensual dissemination of
sexually explicit images.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1 adds a new section, 250.70 to the New York Penal Law, which
provides that a person is guilty of non-consensual dissemination of
sexually explicit images when he or she knowingly discloses a
photograph, film, videotape, or recording of another person whose
intimate parts are exposed or who is engaged in an act of sexual
contact, when a reasonable person would have known that the person
depicted would not have consented to such dissemination.

Additionally, the dissemination must be without such person's consent
and under circumstances in which the person has a reasonable
expectation of privacy, meaning that the person has consented to the
capture or possession of an image within the context of a private or

confidential relationship.

250.70.1 provides definitions of "intimate parts" and "sexual
contact."

250.70.2 provides exceptions for lawful and common practices of law
enforcement, disseminations made for a legitimate public purpose, and
situations involving voluntary exposure in public or commercial
settings, and disseminations made in the reporting of unlawful
activity.

250.70.3 Non-consensual dissemination of sexually explicit images is a
class A misdemeanor.

250.75 is also added to the penal law to allow for a civil cause of
action for the non-consensual dissemination of sexually explicit
images.

The statute of limitations to bring suit is five years. Nothing in the
section requires that a criminal charge be brought or a criminal
conviction obtained as a condition of bringing the civil cause of
action. In addition to injunctive relief, the plaintiff is entitled to
actual damages, punitive damages, and reasonable court costs and
attorney fees. The actual damages are the higher of either (1) the
calculated actual damages at the rate of $1,000 per day for each day
the images were viewable up to thirty days, or each time a threat to
distribute was made, or an image fraudulently obtained, or (2)
$10,000. There are several affirmative defenses to the civil suit
included in this legislation. Additionally, 250.75.4 allows the
plaintiff's identifying information to be redacted and to proceed with
the case under a pseudonym. The court must inform the plaintiff of the
option to proceed under a pseudonym at the earliest possible point and
shall maintain records in a manner that protects the plaintiff's
confidentiality.

 JUSTIFICATION :

In an era of increased text messaging, social networking, and
emailing, people in intimate relationships sometimes share pictures
with each other, some of which may be sexually explicit in nature.
However, recipients of these images do not always keep the images
within the confines of an intimate relationship, and have the ability
to widely disseminate the photos on the Internet.

The non-consensual dissemination of such sexually explicit images,
also known as "revenge porn" is often provided to Internet websites,
and features photos sometimes accompanied by disparaging descriptions
and identifying details, such as where the victims live and work, as
well as links to their social network pages.

Posting these photographs online is damaging to the reputations of the
victims. These photographs have extensive negative effects, including
destroying future intimate relationships and educational and
employment opportunities. Victims are routinely threatened with sexual
assault, stalked, harassed, or fired from jobs.

New York's current distribution of unlawful surveillance law only
governs photographs taken without the subject's consent. This bill
would govern photographs that are captured consensually, as part of an
intimate, private relationship, which are later disclosed by an
individual to the public without the consent of the individual
photographed.

Criminalization is preferable to civil suits by victims because civil
suits do not deter those who upload or disclose new images after a
civil suit has ended. Furthermore, a lengthy trial is emotionally
exhausting and prohibitively expensive. Moreover, the websites that
distribute nonconsensual pornography are given broad immunity for
civil liability under federal law through the Communications Decency
Act. Therefore, criminalizing dissemination of these photos may
prevent websites from benefiting from the harmful images.

However, because New York relies on common law to pursue a civil case,
including the torts of harassment and intentional infliction of
emotional distress, a civil suit is often difficult to pursue and win.
As such, this legislation adds a civil cause of action for
non-consensual dissemination of sexually explicit images that would
provide recourse to victims. The civil cause of action is designed to
work in conjunction with the criminal law, and does not require that a
criminal conviction or charge be obtained in order to proceed. The
victim will have a choice whether to pursue a criminal or civil case,
or both. Additionally, victims of non-consensual pornography have five
years to bring a suit for the nonconsensual dissemination of sexually
explicit images.

The criminal portion of the bill is also narrowly drawn so as not to
infringe on First Amendment rights, as there is no constitutional
protection afforded to individuals who consume or distribute sexually
explicit images of individuals without their consent. The bill also
creates exceptions for lawful activity.

 PRIOR LEGISLATIVE HISTORY :

2013-2014: A.8214/S.5949 - Amend and recommit to codes.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect on the first of November next succeeding
the date on which it shall have become a law.

2015-S4450B (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4450--B

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             March 20, 2015
                               ___________

Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted  to  said committee -- committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the penal law, in relation to establishing the crime  of
  non-consensual dissemination of sexually explicit images

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The penal law is amended by adding two new sections  250.70
and 250.75 to read as follows:
S 250.70 NON-CONSENSUAL DISSEMINATION OF SEXUALLY EXPLICIT IMAGES.
  A PERSON IS GUILTY OF NON-CONSENSUAL DISSEMINATION OF SEXUALLY EXPLIC-
IT  IMAGES  WHEN HE OR SHE KNOWINGLY AND WITHOUT CONSENT OF THE DEPICTED
PERSON DISSEMINATES A PHOTOGRAPH, FILM,  VIDEOTAPE,  RECORDING,  OR  ANY
OTHER  REPRODUCTION  OF THE IMAGE OF SUCH DEPICTED PERSON WHOSE INTIMATE
PARTS ARE EXPOSED OR WHO IS ENGAGED IN AN ACT OF SEXUAL CONTACT, WHEN  A
REASONABLE  PERSON  WOULD  HAVE KNOWN THAT THE PERSON DEPICTED WOULD NOT
HAVE CONSENTED TO SUCH DISSEMINATION, AND UNDER CIRCUMSTANCES  IN  WHICH
THE  DEPICTED  PERSON HAS A REASONABLE EXPECTATION OF PRIVACY.  A PERSON
WHO HAS CONSENTED TO THE CAPTURE OR POSSESSION OF AN  IMAGE  WITHIN  THE
CONTEXT  OF  A PRIVATE OR CONFIDENTIAL RELATIONSHIP RETAINS A REASONABLE
EXPECTATION  OF  PRIVACY  WITH  REGARD  TO  DISSEMINATION  BEYOND   THAT
RELATIONSHIP.
  1. FOR THE PURPOSES OF THIS SECTION:
  (A)  "INTIMATE  PARTS"  MEANS THE NAKED GENITALS, PUBIC AREA, ANUS, OR
FEMALE POST-PUBESCENT NIPPLE OF THE PERSON.
  (B) "SEXUAL CONTACT" MEANS BUT IS NOT LIMITED TO, MASTURBATION,  GENI-
TAL, ANAL, OR ORAL SEX, SEXUAL PENETRATION WITH OBJECTS, OR THE TRANSFER
OR TRANSMISSION OF SEMEN UPON ANY PART OF THE DEPICTED PERSON'S BODY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02341-13-6

S. 4450--B                          2

  2. THIS SECTION SHALL NOT APPLY TO:
  (A)  LAWFUL  AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT-
ING, OR LEGAL PROCEEDINGS, OR DISSEMINATIONS MADE IN  THE  REPORTING  OF
UNLAWFUL ACTIVITY; OR
  (B)  SITUATIONS  INVOLVING  VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
SETTINGS, OR DISSEMINATIONS MADE FOR A LEGITIMATE PUBLIC PURPOSE.
  NON-CONSENSUAL DISSEMINATION OF SEXUALLY EXPLICIT IMAGES IS A CLASS  A
MISDEMEANOR.
S 250.75 CIVIL CAUSE OF ACTION FOR NON-CONSENSUAL DISSEMINATION OF SEXU-
           ALLY EXPLICIT IMAGES.
  1.  A  CIVIL  CAUSE  OF ACTION LIES AGAINST A PERSON WHO DISSEMINATES,
THREATENS TO DISSEMINATE AN IMAGE OF ANOTHER  PERSON  IDENTIFIABLE  FROM
THE  IMAGE  ITSELF OR INFORMATION DISPLAYED IN CONNECTION WITH THE IMAGE
AND WHOSE INTIMATE PARTS ARE EXPOSED OR IS  ENGAGED  IN  SEXUAL  CONDUCT
WITHOUT THAT OTHER PERSON'S CONSENT, IF THE ACTOR:
  (A)  OBTAINED  THE  IMAGE  OR  IMAGES  UNDER  CIRCUMSTANCES IN WHICH A
REASONABLE PERSON WOULD KNOW OR UNDERSTAND THAT THE IMAGE WAS TO  REMAIN
PRIVATE,  INCLUDING  BUT NOT LIMITED TO IMAGES SHARED WITHIN THE CONTEXT
OF A CONFIDENTIAL RELATIONSHIP THAT WERE THEN DISSEMINATED  BEYOND  SUCH
RELATIONSHIP; OR
  (B)  KNOWINGLY  OBTAINED  THE IMAGE OR IMAGES UNDER FALSE PRETENSES OR
WITHOUT AUTHORIZATION OR BY EXCEEDING  AUTHORIZED  ACCESS  TO  PROPERTY,
ACCOUNTS, MESSAGES, FILES, DEVICES, OR RESOURCES.
  2. THE FOLLOWING AFFIRMATIVE DEFENSE SHALL APPLY IF:
  (A)  THE  DISTRIBUTED  MATERIAL  WAS  CREATED  OR DISTRIBUTED UNDER AN
AGREEMENT BY THE PERSON APPEARING IN THE MATERIAL FOR ITS PUBLIC USE AND
DISTRIBUTION; OR
  (B) THE DISTRIBUTED MATERIAL CONSTITUTES A MATTER OF  PUBLIC  CONCERN,
LAWFUL  AND  COMMON  PRACTICES  OF  LAW ENFORCEMENT, CRIMINAL REPORTING,
LEGAL PROCEEDINGS,  MEDICAL  TREATMENT,  OR  SCIENTIFIC  OR  EDUCATIONAL
ACTIVITIES; OR
  (C)  THE  DISTRIBUTED  MATERIAL  WAS PHOTOGRAPHED, FILMED, VIDEOTAPED,
RECORDED, OR OTHERWISE REPRODUCED IN A PUBLIC PLACE  AND  UNDER  CIRCUM-
STANCES  IN  WHICH  THE PERSON DEPICTED HAD NO REASONABLE EXPECTATION OF
PRIVACY.
  3. IN ADDITION TO OTHER RELIEF AVAILABLE AT LAW, INCLUDING AN ORDER BY
THE COURT TO DESTROY ANY IMAGE OBTAINED OR DISSEMINATED IN VIOLATION  OF
THIS  SECTION, AND TO PRESERVE DISCOVERABLE INFORMATION, AND PRELIMINARY
AND PERMANENT INJUNCTIVE RELIEF, THE ACTOR SHALL BE LIABLE TO THE PLAIN-
TIFF FOR:
  (A) ACTUAL DAMAGES, BUT  NOT  LESS  THAN  LIQUIDATED  DAMAGES,  TO  BE
COMPUTED  AT  THE  RATE OF ONE THOUSAND DOLLARS PER DAY FOR EACH DAY THE
IMAGE OR IMAGES WERE VIEWABLE OR EACH INSTANCE A  THREAT  TO  DISTRIBUTE
WAS  MADE  OR  AN  IMAGE FRAUDULENTLY OBTAINED UP TO THIRTY DAYS, OR TEN
THOUSAND DOLLARS, WHICHEVER IS HIGHER; AND
  (B) PUNITIVE DAMAGES; AND
  (C) REASONABLE COURT COSTS AND ATTORNEYS' FEES.
  4. IN AN ACTION BROUGHT UNDER THIS SECTION, ALL  IDENTIFYING  INFORMA-
TION  ABOUT  THE  PLAINTIFF  MAY  BE  REDACTED  FROM PLEADINGS AND COURT
FILINGS AND THE PLAINTIFF MAY PROCEED UNDER PSEUDONYM; THE  COURT  SHALL
INFORM  THE  PLAINTIFF  OF  THE OPTION TO PROCEED UNDER PSEUDONYM AT THE
EARLIEST POSSIBLE POINT AND SHALL MAINTAIN THE RECORDS IN A MANNER  THAT
PROTECTS THE PLAINTIFF'S CONFIDENTIALITY.
  5.  THE FOLLOWING DEFINITIONS SHALL APPLY:  (A) "PERSONAL INFORMATION"
INCLUDES, BUT IS NOT LIMITED TO, NAME OR ANY PART  THEREOF,  ADDRESS  OR
ANY  PART  THEREOF,  AGE,  NAMES  OF  FAMILY  MEMBERS,  MARITAL  STATUS,

S. 4450--B                          3

RELATIONSHIP TO DEFENDANT, RACE OR ETHNIC BACKGROUND, EMPLOYER,  SCHOOL,
OR  URLS, SOCIAL MEDIA ACCOUNT USERNAMES, AND SCREENSHOTS RELATED TO THE
CAUSE OF ACTION;
  (B) "ACTUAL DAMAGES" INCLUDES, BUT IS NOT LIMITED TO, PAIN AND SUFFER-
ING, EMOTIONAL DISTRESS, ECONOMIC DAMAGES, AND LOST EARNINGS.
  6. A CAUSE OF ACTION BROUGHT UNDER THIS SECTION MAY BE BROUGHT NO MORE
THAN FIVE YEARS AFTER THE LAST DISSEMINATION OR INCIDENT.
  7. THE ACTOR'S CLAIM THAT THE DEPICTED PERSON IS A PUBLIC FIGURE SHALL
NOT BE SUFFICIENT TO ESTABLISH THE AFFIRMATIVE DEFENSE THAT DISTRIBUTION
CONSTITUTES A MATTER OF PUBLIC CONCERN.
  8. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THAT A CRIMI-
NAL  CHARGE  BE BROUGHT OR A CRIMINAL CONVICTION BE OBTAINED AS A CONDI-
TION OF BRINGING A CIVIL CAUSE OF ACTION OR RECEIVING A  CIVIL  JUDGMENT
PURSUANT  TO  THIS  SECTION  OR  BE CONSTRUED TO REQUIRE THAT ANY OF THE
RULES GOVERNING A CRIMINAL PROCEEDING BE APPLICABLE TO  ANY  SUCH  CIVIL
ACTION.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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Sponsored By

Joseph A. Griffo

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