Revenge Porn Plot Leads To Criminal Conviction–New York v. Piznarski (Forbes Cross-Post)

Recently, the California Attorney General’s office got a lot of attention for arresting Kevin Bollaert, the alleged operator of a revenge porn website. While the arrest was widely popular, it raised many questions. Why did the prosecutors seemingly stretch to assert the crime of identity theft; weren’t there more directly applicable crimes? Does this signal an impending tidal wave of revenge porn prosecutions, or is it just a one-off? Does the prosecutors’ reliance on existing law undermine the rationales for California’s recently enacted revenge porn law (which doesn’t take effect for 2 more weeks)? And why didn’t prosecutors prosecute the users who submitted content to the website?

With respect to the latter point, the originators of revenge porn are the prosecutors’ most obvious targets. A recent prosecution in New York show how those prosecutions might look.

The New York Case

Michael J. Piznarski was a student at Colgate University in New York (for more background, see this article and what appears to be his LinkedIn profile). He had a sexual encounter with “victim A,” which he secretly recorded. He subsequently threatened to publicly release the recording unless victim A had sex with him again; when she relented, he secretly recorded that too. A police investigation revealed that he also secretly recorded having sex with “victim B.” A jury convicted Piznarski of “unlawful surveillance” and “coercion.” He was sentenced to 1-3 years in prison (a sentence I believe he is currently serving).

“Unlawful surveillance” criminalizes video voyeurism, such as photographing or video-recording a person engaged in sexual activity without the person’s consent. On appeal, the appellate court confirmed that all participants in sexual activity must consent to a recording. Piznarski argued that his camera was visible in his room, but the court said he used the camera surreptitiously (“the victims were either out of the room or had their eyes closed when defendant began to operate the camera”).

The statute applied only to places where victims had a “reasonable expectation of privacy,” a phrase Piznarski argued was impermissibly vague. The court disagreed:

When a person knowingly undresses and engages in sexual relations with another person, he or she should be able to do so with the reasonable expectation that his or her actions are limited to that particular time and place and that his or her naked body and/or sexual acts will not be memorialized and/or repeatedly viewed at any time by the other person present or by anyone else with whom that person decides to share the recordings

Whether it’s criminalized or not, it seems like common sense that it’s never OK to make surreptitious recordings of your sex partners.

Implications

Piznarski only threatened to commit revenge porn (or, I think more accurately here, involuntary porn); unlike other revenge porn perpetrators, he never followed through. Nevertheless, revenge porn incidents often involve surreptitious recording–including at least one victim in Bollaert’s prosecution–and an “unlawful surveillance” crime should equally apply to those cases. I haven’t researched how many states have a video voyeurism crime like New York’s, but this 2009 compilation of directly or tangentially related statutes shows that there’s a fair number of similar state laws, plus a broad federal crime, 18 USC 1801.

This prompts my biggest question about policy responses to revenge porn: how much revenge porn is already criminalized, and what holes need fixing? It’s a hard question to answer because so many crimes already exist that it’s not easy to inventory them all. Furthermore, the term “revenge porn” is ambiguous because it refers to a range of disparate activities. Sometimes the victim consented to the recording or made a selfie; other times the recording is made surreptitiously. Sometimes the victim shared the recording with another person; other times the recording is stolen from the victim. The exact crimes applicable to a revenge porn case depend on the exact facts, but Piznarski’s conviction shows how existing crimes can apply. Civil claims also apply to revenge porn. With that in mind, future policy efforts to redress revenge porn (including in New York, which has considered adding a new revenge porn law) will benefit from starting with a thorough assessment of the criminal and civil doctrines already in place.

Case citation: New York v. Piznarski, 2013 N.Y. Slip Op. 08157 (N.Y. App. Div. Dec. 5, 2013)