What is nonconsensual pornography?
Nonconsensual pornography, image-based sexual abuse, or as it is most commonly called, revenge porn, are all terms that refer to the nonconsensual distribution of sexually explicit imagery. Advocates often argue that the term “revenge porn” implies victim shaming, and therefore they prefer to use the term “nonconsensual pornography” exclusively. While one in 25 Americans have been a victim of nonconsensual pornography, women are more likely to be victims than men, with teenagers and young adults particularly susceptible. Nonconsensual pornography is an issue of growing concern, as the global COVID-19 pandemic resulted in an increase in cyber-based intimate partner violence, including nonconsensual pornography.
Victims of nonconsensual pornography face various harms, such as PTSD, anxiety, depression, suicidal thoughts, and other mental health issues, resulting in a decline in overall well-being. Laws addressing nonconsensual pornography are varied, with 46 states and D.C. having criminal statutes, alongside a federal civil claim that offers a cause of action.
The Stopping Harmful Image Exploitation and Limiting Distribution, or SHIELD, Act of 2023 seeks “to provide that it is unlawful to knowingly distribute private intimate visual depictions with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.” In other words, the SHIELD Act seeks to federally criminalize the distribution of nonconsensual pornography.
Arguments for SHIELD
Some argue that current state laws provide inadequate protections to victims of revenge pornography. Not only do not all states currently criminalize nonconsensual pornography, but the current state laws criminalize nonconsensual pornography in different ways and to varying degrees. Some states require that the victim is identifiable in the distributed imagery, while others require that the perpetrator had intent to harm, which makes prosecuting perpetrators who seek financial gain or social status as opposed to harm near impossible. While criminalizing conduct that occurs across state lines is a perpetual issue with state laws, the fact that nonconsensual pornography is a cybercrime makes this issue particularly relevant.
Regardless of the efficacy of state laws, supporters of SHIELD argue federally criminalizing nonconsensual pornography would reduce incidents of nonconsensual pornography, providing victims with much-needed protections from a harmful and damaging act. When surveying Americans who admitted to distributing nonconsensual pornography, 82% said they would not have done it if they had known it was a federal felony. Indeed, deterrence theory suggests the federal criminalization of nonconsensual pornography would reduce incidents of the crime.
Arguments Against SHIELD
Opponents of SHIELD argue that state laws do enough to protect victims of nonconsensual pornography, even if they are less comprehensive in totality. After all, nearly all 50 states do have laws in place already, and there is a federal cause of action that enables civil suits against perpetrators. While 82% of perpetrators said they would not have distributed nonconsensual pornography if they knew it was a federal felony, 81% said they would not have done as much if they knew it was a state felony, suggesting that state laws could be almost as effective at preventing nonconsensual pornography as federal laws.
Others, like the American Civil Liberties Union, argue that SHIELD is unconstitutional. They further that victims of nonconsensual pornography who distribute the images out of surprise or shock might be unintentionally committing criminal acts, and that the law could restrain journalists from publishing images. While some of the language of the bill has been edited since the ACLU’s initial complaint, a lot of the specific text that was initially worrisome remains. Various state laws that seek to criminalize nonconsensual pornography have been challenged in courts on First Amendment grounds. Other concerns, such as concern for “duplicative prosecutions” because of a federal law that “largely overlaps” with state laws, still remains regardless of first amendment challenges or lack thereof.
Conclusion
Perpetrators of nonconsensual pornography can cause significant harm to their victims. Proponents of the SHIELD Act claim making nonconsensual pornography a federal crime will decrease the rates of nonconsensual pornography and shore up the patchwork of state laws currently in place. Opponents, however, argue that the SHIELD Act is both unnecessary and unconstitutional, potentially creating further problems through criminalizing an act that state laws by and large protect against already.
