Month: November 2017

By: Brooke Throckmorton,

The rise and improvement in technology in the recent decades is monumental. In 2000, GPS went mainstream, and texting was forever embedded into our world.[1] Wikipedia has only been around since 2001.[2] Google went “public” in 2004, making all the answers to life questions available at our fingertips.[3] Technology has no doubt made our lives easier; however, it has also made many lives a living hell through the embarrassment, harassment, and humiliation that is revenge porn.

Revenge porn is an epidemic that has swept across the entire world. Revenge porn is known more formally and preferably as nonconsensual pornography.[4]  It is defined as the “distribution of sexually graphic images of individuals without their consent.” [5]  This includes images originally obtained with and without consent.[6]  For example, as image obtained with consent could be in the context of a private relationship whereas an image obtained without consent could occur by means of a hidden recording or a sexual assault recording.[7]  While a popular view on nonconsensual pornography is that it is not very harmful, in all actuality, nonconsensual distribution of intimate images is not a “minor inconvenience” but rather a form of “sex abuse.”[8] Nonconsensual pornography affects average people as well as celebrities. Some celebrities who have fallen victim to this crime include but are in no way limited to: Kate Middleton, Rhianna, Jennifer Lawrence, Kate Upton, Prince Henry.[9] Even male marines were not above posting nonconsensual pictures of their female comrades.[10] In reality, “we are all a moment away from being a psycho’s target.”[11]

A brief history of nonconsensual pornography reveals how far we have come, yet still have so far to go, in combatting this dilemma. Nonconsensual pornography was initiated by Hustler Magazine’s “Beaver Hunt” issue in 1980 which published nude photos of an “unwilling and unknown woman” taken by her husband on a camping trip that were later stolen.[12] In 2000, an Italian researcher coined this new “genre” of photos as “realcore pornography” where photos and videos of ex-girlfriends initially sent for private use, became public.[13]  In 2008 through 2010, the revenge porn sites really stepped up their game. Websites emerged solely dedicated to posting nonconsensual porn, even going as far as mixing “real” user-submitted photos with staged versions and a scoundrel launched a website featuring naked photographs along with the victims’ full names and links to their social media pages.[14]  In 2010, a man from New Zealand became the first to go to prison for posting nonconsensual pornography on Facebook.[15] Fast forward to today where 38 states plus the District of Colombia have nonconsensual pornography laws on the books.[16] However, society’s still very problematic view towards women does not help the situation. As President Obama said when he launched his campaign to end sexual assault on college campuses called “It’s On Us,” prevention of these types of acts is “going to require a fundamental shift in our culture.”[17]

It would not make sense to write this article without mentioning a woman who has led the vigorous revolution in fighting back against nonconsensual pornography. I had the pleasure of being inspired by her when she came to speak here at University of Richmond in September of this year. This woman’s name is Carrie Goldberg. She is an attorney who started her own law firm in Brooklyn, focusing on the types of crimes discussed below, after falling victim to this hateful crime herself.[18] In addition, she lectures about revenge porn and online privacy across the country; has been featured in articles in the New Yorker, Glamour, The Huffington Post, Nightline and CNN; and was named Cosmo’s “Fun, Fearless Female” in August 2014.[19] Her firm specifically focuses on obtaining justice for victims of revenge porn, domestic violence, sexual assault, blackmail, extortion, sextortion, and anti-abortion terrorism.[20] Goldberg describes the act of nonconsensual pornography as “bodies put on a platter for the internet to consume.”[21] As if Carrie Goldberg is not inspiring enough, her law firm’s website provides access and support to victims of these crimes in its structure and empowering quotes including “You are not crazy. Your situation is.”[22] Ms. Goldberg’s firm has removed 18,101 nonconsensual pornography photos and videos, and de-anonymized 164 harassing emails as of today.[23] With an empowering figure such as Carrie Goldberg heading a firm that combats one of society’s most pressing issues, nonconsensual pornography does not have a bright future in this country.

While not everyone can be Carrie, you can bring recognition and understanding to this problem. For example, stop victim-blaming. By this I mean, stop telling victims of nonconsensual pornography that they should not have sent the picture in the first place. Instead, society should be telling the perpetrator, A.K.A. the person who put the photos online, to not post the pictures in the first place. This situation is comparable to what happens in sexual assault situations. People may say, “you should not have worn that dress” or “you should not have drank so much tequila that night.” When in reality, society should be telling the perpetrator of the assault, not the victim of the assault, to refrain what acting in a certain manner.

 

[1] Ki Mae Heussner, The Top 10 Innovations of the Decade, ABC News (Dec. 1, 2009),  http://abcnews.go.com/Technology/AheadoftheCurve/top-10-innovations-decade/story?id=9204931.

[2] Id.

[3] Id.

[4] C.A. Goldberg, PLLC, http://www.cagoldberglaw.com/how-to-report-revenge-porn-on-social-media/ (last visited Oct. 19, 2017).

[5] Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345 (2014).

[6] Id.

[7] Id.  

[8] Jojo Marshall, Why We All Need to Worry About Revenge Porn, Elle, (Sept. 24, 2014), http://www.elle.com/life-love/sex-relationships/news/a15497/what-is-revenge-porn/.

[9] Janelle Griffith, Revenge Porn: Well-Known Celebrity Victims, nj.com, (Jan. 9, 2015 at 9:12AM),http://www.nj.com/entertainment/index.ssf/2015/01/celebrity_revenge_porn_victims.html; Keith Perry, Revenge Porn: Some of the Biggest Celebrity Victims, The Telegraph, (Sept. 30, 2014, 12:17 AM), http://www.telegraph.co.uk/news/celebritynews/11129357/Revenge-porn-some-of-the-biggest-celebrity-victims.html.

[10] Luis Martinez, US Navy Makes Distributing Nude Photos without Consent a Punishable Offense, ABC News (Apr. 20, 2017 at 12:59AM), http://abcnews.go.com/US/us-navy-makes-distributing-nude-photos-consent-punishable/story?id=46902843.

[11] Carrie Goldberg, Esquire, Founder of C.A. Goldberg PLLC, The Future of Sexual Privacy: 5 Ways to Combat Revenge Porn on College Campuses (Sept. 19, 2017).

[12] Alexa Tsoulis-Reay, A Brief History of Revenge Porn, New York Magazine (Jul. 21, 2013), http://nymag.com/news/features/sex/revenge-porn-2013-7/.

[13] Id.

[14] Id.

[15] Id.

[16] Cyber Civil Rights Initiative, https://www.cybercivilrights.org/revenge-porn-laws/ (last visited Oct. 19, 2017).

[17] See Marshall, supra note 8.

[18]  See Goldberg, supra note 11.

[19] C.A. Goldberg, PLLC, http://www.cagoldberglaw.com/team/carrie-goldberg/ (last visited Oct. 19, 2017).

[20] Id.

[21] See Goldberg, supra note 11.

[22] C.A. Goldberg, PLLC, http://www.cagoldberglaw.com/ (last visited Oct. 19, 2017).

[23] Id.

Image Source: http://www.vocativ.com/339362/federal-revenge-porn-bill/index.html.

By: Nicole Allaband,

Domestic violence is a widespread epidemic in the United States. Each year, between 1.8 and 4 million domestic violence incidents are reported.[1] One in three women will experience some form of domestic violence in her lifetime.[2]

Protection from abuse orders are a common remedy the courts will use to prevent future violence and protect survivors of domestic violence.[3] These orders can be tailored to fit the circumstances but frequently include no contact provisions.[4] However, no contact provisions can be difficult to enforce because the abuser is usually intimately familiar with the routine of the survivor.[5]

Studies have shown that as many as one quarter to two thirds of protection orders are violated.[6] The time following a survivor’s decision to separate from his or her abuser is often a very dangerous period for the survivor because the abusers seek to reassert their dominance and deter the survivor from seeking help.[7] For various reasons, police do not always enforce protection orders or respond to reported violations. In the case of Castle Rock v. Gonzales, Supreme Court ruled that police cannot be sued for failing to enforce a protection order.[8] Abusers therefore feel emboldened to violate a protection order which they view as a mere piece of paper.[9]

Electronic monitoring can be very useful in enforcing protection orders, deterring abusers, and helping survivors get their lives back.[10] Electronic monitoring has been used for years to track convicted sex offenders deemed a high risk, and has reduced recidivism rates of sex offenders.[11] A study in Connecticut demonstrated that using global positioning satellite (GPS) devices can be similarly used to deter abusers from violating the protection orders.[12]

GPS devices worn by the abuser cannot prevent crime but the technology can be used to alert law enforcement, and the survivor, if the abuser enters an area deemed off-limits, giving the survivor a chance to escape.[13] The device can be programmed to include multiple exclusion zones, including the survivor’s residence and place of employment, as well as children’s school, family residences, and other areas the survivor frequents.[14] However, a study conducted in 2009 found that only one third of law enforcement agencies using electronic monitoring in domestic violence cases utilized the alert system for survivors.[15]

Since the early 2000s, many states have statutorily authorized the use of GPS devices to enforce protection orders.[16] Judges have the discretion to impose electronic monitoring in both the pre-trial and post-trial phases.[17] Imposition of electronic monitoring before a trial poses serious due process issues.

The Supreme Court has held that electronic monitoring is a search and seizure within the scope of the Fourth Amendment.[18] Therefore, a person is entitled to due process before being placed on electronic monitoring. The test developed in Mathews v. Eldridge controls – the court must balance the governmental interest against the individual interest and the potential for erroneous deprivation of a right.[19] In cases of domestic violence, the state interest is compelling – protection of domestic violence survivors.[20]

But the individual interest is also compelling – a right to be free in one’s person. A conviction of a domestic violence charge or a hearing at which the abuser has the opportunity to be heard before a permanent protection order is granted, satisfies the due process requirements. However, courts should follow strict guidelines before imposing electronic monitoring in the pre-trial phase or as a condition of a temporary emergency protection order.

Jacquelyn Campbell developed a dangerousness assessment that courts can use during the pre-trial phase to determine if electronic monitoring is warranted.[21] The danger assessment seeks to evaluate the risk for further abuse and the potential lethality of the abuse.[22] The assessment is a 20-question form focusing on risk factors like the severity and frequency of abuse, use or possession of weapons, whether substance abuse is involved (drugs or alcohol), jealousy, stalking, and threats.[23]

In addition to the constitutional due process issues, a more practical issue exists – who will pay for the GPS devices and the personnel to monitor the abuser? The costs of electronic monitoring vary but are approximately $10 per day per abuser.[24] Courts have the discretion to impose the costs on the abuser.[25] Again, this raises constitutional issues if the electronic monitoring is imposed during the pre-trial phase. Additionally, many of the abusers in domestic violence cases cannot afford to pay for the electronic monitoring. In these instances, some courts allow for the abuser to apply for a fee reduction or waiver.[26] Another potential avenue for funding is the Violence Against Women Act (VAWA) which mandates the federal government provide support in investigating and prosecuting domestic violence.[27]

Studies show that GPS devices have the potential to decrease violence against survivors and deter abusers from violating protection orders. However, courts must be cautious in utilizing the technology during the pre-trial phase. Due process concerns require that the court hold a hearing before ordering electronic surveillance. Jacquelyn Campbell’s dangerousness assessment questionnaire is a good tool for courts to use when evaluating domestic violence cases. States also need to seriously consider funding these programs, either through state funds or federal grants under VAWA, because many abusers cannot afford the costs of the electronic monitoring. While due process concerns and the cost of electronic monitoring must be carefully considered, courts should not be deterred from utilizing the technology because it has proven to be successful in enforcing protection orders and protecting survivors of domestic violence.

 

[1] See Suraji R. Wagage, When the Consequences Are Life and Death: Pretrial Detention for Domestic Violence Offenders, 7 Drexel L. Rev., 195, 201 (2015).

[2] See id.

[3] See Natalie Fox Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously, 43 U. Memphis L. Rev. 171, 180 (2012).

[4] See M. Alexandra Verdi, Strengthening Protections for Survivors of Domestic Violence: The Case of Washington, D.C., 64 Buffalo L. Rev. 907, 913 (2016).

[5] See Amanda Rhodes, Strengthening the Guard: The Use of GPS Surveillance to Enforce Domestic Violence Protection Orders, 2 Tenn. J. Race, Gender & Soc’y Just. 129, 132 (2013).

[6] See Jaime Kay Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 28 Wis. J.L. Gender & Soc’y 1, 8 (2013); see also Hannah Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 19 Wm. & Mary J. Women & L. 301, 318 (2013).

[7] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 175-76, 179; see also Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 10.

[8] See Castle Rock v. Gonzales, 545 U.S. 748 (2005).

[9] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 10.

[10] See Rhodes, Strengthening the Guard, 140; see also Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 342; Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 184.

[11] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 182.

[12] See Brenner, Transcending the Criminal Law’s “One Size Fits All” Response to Domestic Violence, 342.

[13] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 183-84; Oren M. Gur et al., Specialization and the Use of GPS for Domestic Violence by Pretrial Programs: Findings from a National Survey of U.S. Practitioners, 34 J. Tech. Human Services 32, 44-45 (2016).

[14] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 8.

[15] See Gur, Specialization and the Use of GPS for Domestic Violence by Pretrial Programs, 45.

[16] See id. at 34; see also Mass. Ann. Laws ch. 209A § 7 (LEXIS through Act 95 of the 2017 Legislative Session); Ind. Code Ann. § 35-33-8-11 (Burns, LEXIS through the end of the First Regular Session of the 120th General Assembly).

[17] See Shelley M. Santry, Can You Find Me Now? Amanda’s Bill: A Case Study in the Use of GPS in Tracking Pretrial Domestic Violence Offenders, 29 Quinnipiac L. Rev. 1101, 1110 (2011).

[18] See Grady v. North Carolina, 135 S. Ct. 1368 (2015).

[19] Mathews v. Eldridge, 424 U.S. 319 (1976).

[20] See Malone, GPS Monitoring of Domestic Violence Offenders in Tennessee, 205.

[21] See Jacquelyn C. Campbell et al., The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide, J. Interpersonal Violence 653, 655 (2009).

[22] See id. at 654.

[23]See id. at 655.

[24] See Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 27.

[25] See Rhodes, Strengthening the Guard, 136.

[26] See id. at 136-37.

[27] Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 28 (discussing using federal funds under VAWA for state programs).

Image Source: http://www.nydailynews.com/new-york/exclusive-staten-island-program-ankle-monitors-track-domestic-batterers-article-1.1443152.