Vermont Supreme Court Dismisses Nonconsensual Pornography Prosecution–State v. VanBuren

Last year, the Vermont Supreme Court upheld Vermont’s sui generis crime of nonconsensual pornography dissemination (13 V.S.A. § 2606) from a facial constitutional challenge. This ruling was surprising because the court said that the law didn’t fit into any of the existing exceptions to the First Amendment, so strict scrutiny applied; yet the law survived strict scrutiny despite the many overlapping laws that suggested there may be less restrictive alternatives. The ruling had one extra twist: rather than remanding the case to the lower court for further proceedings, the Supreme Court asked the parties to directly brief it on the as-applied constitutional question and prima facie elements. Having completed those proceedings, the Vermont Supreme court has now dismissed the prosecution, holding that the prosecution did not satisfy the prima facie elements.

What Happened. The victim sent nude photos to a former boyfriend, Coon, via Facebook Messenger. The relationship between the defendant and Coon isn’t clear, but the defendant apparently accessed the photos through Coon’s phone and then reposted the photos to Coon’s Facebook account. Bonus thought issue: if everyone stipulated to these facts, what additional crimes might the defendant have committed?

No Reasonable Expectation of Privacy.  Without a reasonable expectation of privacy, the state’s interest in curbing the photos’ dissemination is “minimal.” This makes a reasonable expectation of privacy an essential prima facie element of the nonconsensual pornography dissemination crime. The Vermont crime specified that the lack of privacy expectations qualified as a defense, but the court says the burden is on the state, not the defendant.

The court doesn’t expressly define when a victim has a reasonable expectation of privacy, but the standard is objective, not subjective, and it’s different than the Fourth Amendment meaning of the term. The court does say that “reasonable expectations of privacy” should be narrow:

it generally connotes a reasonable expectation of privacy within a person’s most intimate spheres. Privacy here clearly does not mean the exclusion of all others, but it does mean the exclusion of everyone but a trusted other or few.

The court concludes the victim doesn’t have a reasonable expectation of privacy in the photos she sent to Coon because they weren’t in “any kind of relationship engendering a reasonable expectation of privacy.” The court explains:

[the state hasn’t offered evidence that] Mr. Coon had a relationship with complainant of a sufficiently intimate or confidential nature that she could reasonably assume that he would not share the photos she sent with others. Nor has it offered evidence of any promise by Mr. Coon, or even express request by complainant, to keep the photos confidential. The State stipulated that complainant and Mr. Coon were not in a relationship at the time complainant sent the pictures.

Implications

Ugh, this case has problems. Let me highlight the top three:

• the crime survived strict scrutiny on a facial constitutional challenge
• the Vermont Supreme Court evaluated the prima facie elements itself without asking a lower court to do the first cut
• the court says that the victim had no reasonable expectation of privacy when sending nude photos to a former boyfriend, even though we don’t know why she sent the photos. Read literally, this ruling says that Coon–and apparently anyone who has access to Coon’s phone–can freely redistribute the photos however they want (subject to other limits like copyright).

To me, this doctrinal muck is the inevitable by-product of manufacturing new nonconsensual pornography crimes. Those crimes overlap so many areas of law, and run up against (or cross) constitutional limits, that courts are going to tie themselves up in logic pretzels trying to navigate the jumbled environment. I ask yet again: are sui generis crimes the best way to redress the nonconsensual pornography problem? This article explains one reason why the answer may be no.

Is this a good or bad ruling for the future of sui generis nonconsensual pornography dissemination crimes? The first ruling was a positive for them, implying that the crimes can survive facial constitutional challenges. The second ruling adds a new mandatory element to the crime (“reasonable expectation of privacy”) and finds that the victim’s dissemination to a single recipient (with whom she may have once had a prior intimate relationship) didn’t satisfy that standard as a matter of law. This extra prima facie element–especially as broadly interpreted by this court–will deter some prosecutors from bringing some otherwise-meritorious cases.

Finally, what does this ruling do to the definition of “reasonable expectation of privacy” standard more generally? The Fourth Amendment jurisprudence has a “third party doctrine” that basically says you waive the constitutional privacy protection by giving personal information to anyone else, even a business entrusted to hold that information for you. Does this ruling suggest a “third party doctrine” for the sui generis nonconsensual pornography laws, or perhaps more generally for any other statutes or common law torts that are predicated on a “reasonable expectation of privacy”?