State lawmakers are moving to make criminals out of those who email or post naked photos of friends and exes on the world wide web without their permission.
Legislation unanimously approved Thursday by the House Judiciary Committee would make it a felony to post photos, videos, film or any digital recording of anyone who is naked or engaging in a sexual act. The only defense would be if the person pictured has first given written consent.
Rep. J.D. Mesnard, R-Chandler, said the real intent of his measure is to stop what is becoming known as “revenge porn.”
“What we have seen lately, and I'm sure you've read some of the stories, many of them tragic, are situations where someone sends a picture of themselves nude to somebody else and that person, maybe it's during a relationship, and a relationship ends, and that person posts that photo online,” he said.
Despite Thursday's unanimous vote, HB 2515 still faces some significant questions that could sideline the measure when it reaches the House floor. Potentially the most significant is the whole question of consent.
Rep. Eddie Farnsworth, R-Gilbert, said it's not unusual for individuals to send out naked photos of themselves. Sometimes it's in the form of what's become known as “sexting,” sending messages between cell phones. Sometimes it might simply be someone at a computer sending a photo to someone else.
“Once you send it out, I think there's some difficulty in claiming that you have a right to privacy,” Farnsworth said.
“You sent it,” he said. “It's on the entire system.”
Farnsworth said the situation might be different with a child, “somebody who's naive and incapable of understanding what they're doing.”
Mesnard acknowledged that the issue is complex. He said many of the photos that end up on line were actually taken with the consent of the person pictured, perhaps by a spouse or loved one.
“I am not willing to judge what two people do in a trusting relationship,” he said.
But he said that should be no excuse for whoever still has that photo to then share it with the world.
“Sadly, 50 percent of marriages end in divorce,” he said.
“And then what happens,” Mesnard continued. “Now the marriage has ended, maybe badly, so now someone wants to hurt someone else?”
He said the fact that the partner consented to the photo during happier times should not be considered consent to having the photo shared now.
“I'm not sure it was stupid in that situation,” he said.
Mesnard said this wasn't an issue before digital photography became popular, computers proliferated and cell phones became ubiquitous.
“Unfortunately, as technology changes, people find new ways of hurting people,” he said. And Mesnard said it's only getting worse with new programs like Instagram which promotes itself as “a fast, beautiful and fun way to share your life with family and friends.”
But Mesnard said it's virtually impossible to share a photo electronically with just one person.
“That photo now goes out to six or seven billion people,” he said.
“It's difficult to undo it,” Mesnard continued. “And it is often mortifying and embarrassing as you can imagine.”
He said probably 80 percent of those compromising photos are of women.
“And so it's time for us to step in and say, ‘This is not OK,’” Mesnard said.
That still leaves the question of whether those pictured consented to being photographed in the nude or having sex and whether the person who took the picture and possesses it has a right to share it with others.
“I am a strong supporter of the First Amendment,” Mesnard said. “I don't think this is what our Founding Fathers had in mind.”
Other concerns remain.
Rep. Martin Quezada, D-Phoenix, said the legislation would make it a crime for the person who possesses the photo to send it out without written permission.
“What about that second relay?” he asked about someone who may not realize that the person in the picture did not give consent. “Would this cover them?”
Mesnard said he wants to be sure that these images do not spread, but he agreed to work further on the language to mainly “go after the bad guys.”
Rep. Albert Hale, D-St. Michaels, questioned whether written consent of the person in the photo could be legally meaningless if that person is a minor.
A lobbyist for Verizon and Microsoft said she wants to be sure that her clients do not face liability.
Legislators did approve a new law four years ago which makes “sexting” a petty offense. But that applies only to those younger than 18 under the premise that they are too immature to understand the implications of what they are doing – and the possibility of that photo being shared – and need some threat of criminal prosecution to make them think twice.