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California Penal Code § [Section] 647(j)(Porn4)(A) – Revenge Porn

California Penal Code § [Section] 647(j)(4)(A) – Revenge Porn

California Penal Code [CPC] §647(j)(4)(A)Revenge Porn – California Penal Code §647(j)(4)(A) applies to illegal intentional distribution of any image of: 1) Any intimate body part of another identifiable person; 2) Any person engaged in an act of sexual intercourse, sodomy, oral copulation, or sexual penetration; or, 3) Any person masturbating (or being masturbated). The image must've been created under circumstances in which those involved agreed or understood that the image would remain private. Furthermore, the person distributing the image must know (or should know) that distributing the image will cause serious emotional distress, and the person depicted must suffer actual distress

Revenge Porn is punishable by six months in a county jail and/or a fine of up to $1,000.

What Does California Penal Code §647(j)(4)(A) [Revenge Porn] Prohibit?

In sum, to be guilty of Revenge Porn under CPC §647(j)(4)(A), you must:

  • Intentionally distribution an image; AND,
  • Distribute an image of an intimate body part; OR,
  • Distribute an image of someone engaged in sex of some kind; OR,
  • Distribute an image of someone masturbating (or being masturbated); AND,
  • Have an agreement that image would remain private; AND,
  • Know (or you should know) that distributing the image will cause distress; AND,
  • Cause distress to the person depicted.

Defining “Revenge Porn” Under California Penal Code §647(j)(4)(A)

To convict you under CPC §647(j)(4)(A), the prosecutor must prove the following beyond a reasonable doubt:

  • INTENTIONALLY DISTRIBUTED: You intentionally distributed[1] an image; AND,
  • INTIMATE BODY PART: The image was of the intimate body part or parts[2] of another identifiable person; OR,
  • ENGAGED IN AN ACT OF…: The image depicted an act of sexual intercourse, sodomy, oral copulation, sexual penetration; OR,
  • MASTURBATING: The image was one of masturbation by the person depicted or in which the person depicted participated; AND,
  • PRIVATE: The image was created under circumstances in which the persons involved agreed or understood that the image would remain private; AND,
  • KNOWLEDGE: The person distributing the image knew or should've known that distribution of the image would cause serious emotional distress; AND,
  • DISTRESS: The person depicted suffered distress.

Note: It isn't a violation of this statute to distribute qualifying material while reporting a crime. The same is true of complying with a subpoena or a court order in a legal proceeding, as well as distributions made in the course of lawful public proceedings.

Example: Defendant Declan knows of a website meant to “expose” real people in the nude. Declan has a nude image of Victim Vicki, his ex-girlfriend, taken as a gift. Angry with Vicki, Declan posts the picture on the website, knowing that the image will humiliate her. Vicki learns of the act and is very distressed. She reports Declan. He is arrested and charged under CPC §647(j)(4)(A). Is Declan guilty, on these facts?

Conclusion: Declan intentionally distributed a nude image of Vicki. He knew it would cause her distress. Vicki was distressed. Declan also took the picture of Vicki as a soft of gift; thus, there was at the time an agreement the image would remain private. Therefore, Declan must be guilty. 

Penalties For Revenge Porn Under CPC §647(j)(4)(A)

If you're convicted of Revenge Porn under CPC §647(j)(4)(A), the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both jail time and a fine.[3]

As stated previously, conviction under CPC §647(j)(4)(A) permits up to six (6) months in a county jail and/or a fine of up to $1,000 (one-thousand dollars).[4] Misdemeanor Probation, permitting you to serve at least part of your sentence outside custody, may also be available.

Defenses Against California Penal Code §647(j)(4)(A)

Three common defenses against a charge of Revenge Porn under CPC §647(j)(4)(A) are:

You Had Consent

Example: Defendant Dominic is accustomed to posting sexually graphic images of Victim Vera, his wife, to a website message board. She knows he does this and approves. But, after they divorce, Vera feels horrified that she allowed Dominic to do this. She reports Dominic for posting pictures just before they ended their marriage. Now Dominic has been charged under CPC §647(j)(4)(A). Is Dominic guilty?

Conclusion: Dominic intentionally posted sexually graphic images of Vera. These were images that could cause Vera extreme distress. Dominic would know this when posting them. They distressed Vera. These are elements of the crime. But Vera knew Dominic posted these images, and didn't even object when he posted images at the end of their marriage. Dominic is not guilty of the charge. He had Vera's consent.

You Didn't Intentionally Distribute The Image

Example: Defendant Danica admits she sent a nude image of Victim Vince, her husband, to everyone on Office mailing list. She admits that she knew this would distress Vince, which it did, and that the photo was supposed to remain private. Nonetheless, she insists that she can't be guilty under CPC §647(j)(4)(A) because she accidentally hit a button that mailed the image to Office. Should Danica be acquitted?

Conclusion: Danica sent a nude image of Vince through her email. She knew that the image would cause distress to Vince if it was received by the wrong person. It did distress Vince. The image was meant to be private. These are elements of the crime. But Danica only sent the image to Office mailing list because she pressed the wrong button. Thus, she is innocent. Danica didn't intentionally distribute the image.

You Didn't Intend To Cause Distress

Example: Defendant Derrick met Victim Victor, his boyfriend, through a website that features images of website users in varying states of undress. Thinking that Victor is sexually aroused by posting nude images of himself, Derrick takes nude pictures of Victor and posts them to the website. But Victor is furious. He reports Derrick and has him arrested under CPC §647(j)(4)(A). Should Derrick be convicted?

Conclusion: Derrick intentionally posted nude images of Victor. These distressed Victor. These are elements of the offense. But Derrick thought that Victor enjoyed having images of him posted to the website. If even one element of a charge can't be proved beyond a reasonable doubt, the accused in California courts must be acquitted. Derrick shouldn't be convicted. He didn't intend to cause distress.

Related Offenses

Note: The crimes below are described generally as “related” because they're frequently charged with §647(j)(4)(A) and/or have common elements the prosecutor must prove beyond a reasonable doubt.

The California Penal Code includes multiple offenses related to Revenge Porn, such as: Peeking (CPC §647(i)), Invasion Of Privacy (CPC §647(j)), and the “Video Voyeurism” Law (18 United States Code [U.S.C.] §1801(a)). 

Peeking

Peeking (CPC §647(i)) occurs when anyone loiters, prowls, or wanders onto private property and peeks in the door or window of any inhabited structure without lawful business with the owner or occupant. The crime is related to Revenge Porn because images taken without the knowledge of a victim can be distributed along with those punishable under §647(j)(4)(A), permitting charges of both in the same trial.

If you're convicted of Peeking, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both jail time and a fine.[5]

California Jury Instructions – Peeking

To convict you under CPC §647(i), the prosecutor must prove the following beyond a reasonable doubt:

You delayed, lingered, prowled, or wandered on the private property of someone else. When you were on that property, you did not have a lawful purpose for being there. When you were on the property, finally, you peeked in the door or window of an inhabited building or structure.

Example:  Defendant David gets lost in Victim Vi's neighborhood and wanders into her private apartment complex, where he knows no one. He walks past Vi's bedroom window. David through Vi's window, thinking that it's a friend's apartment. David sees Vi in the nude. Vi reports David and has him charged under CPC §647(i). Should David be convicted, or should he be excused, on these facts?

Conclusion: David wandered onto the private property of apartment complex residents. He knew no one there; thus, absent additional facts, David had no lawful purpose for being there. Finally, David looked through Vi's window when present in the complex. These are the elements of the offense. It doesn't matter that David believed Vi's apartment was another person's residence. He should be convicted.

Invasion Of Privacy

Invasion Of Privacy (CPC §647(j)) involves looking through any hole or opening into the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or any other area in which the occupant has a reasonable expectation of privacy, by any instrumentality, with the intent of invading privacy. The crime is related to Revenge Porn because images which invade privacy can also give rise to charges under CPC §647(j)(4)(A).

If you're convicted of Invasion of Privacy, the penalty may be:

  • A term of up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both jail time and a fine.[6]

California Jury Instructions – Invasion of Privacy

To convict you under CPC §647(j), the prosecutor must prove the following beyond a reasonable doubt:

You looked through a hole or opening, into, or otherwise viewed, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, mobile phone, electronic device, or unmanned aircraft system, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant had a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside.

Example: Defendant Davey works for Casino. He is responsible for ensuring that no one steals from the counting room. Unbeknownst to Victim Vic, an employee of Casino who works in the counting room, Davey installs cameras in the counting room and films Vic at work. Vic learns of this and reports Davey for a criminal Invasion of Privacy under CPC §647(j). Is Davey guilty, under these circumstances?

Conclusion: Davey willfully installed cameras in an area in which persons who were unaware of the cameras would be filmed. These are elements of the offense. But the statute provides a specific exception for “areas of a private business used to count currency or other negotiable instruments.” Therefore, Davey is permitted to surveil the counting room in a covert manner. He is not guilty.

“Video Voyeurism”

The “Video Voyeurism” Law (18 United States Code [U.S.C.] §1801(a)) law involves intentionally capturing an image of a private area of an individual without that person's consent under circumstances in which the individual has a reasonable expectation of privacy. The crime is related to Revenge Porn because the distributing images without a person's consent can give rise to both charges.

If you're convicted of “Video Voyeurism,” a federal crime, the penalty may be:

  • A term of up to one (1) year in federal custody; OR,
  • A fine of up to $100,000 (one-hundred-thousand dollars); OR,
  • Both time in custody and a fine.[7]

California Jury Instructions – “Video Voyeurism”

To convict you under 18 U.S.C. §1801(a), the prosecutor must prove the following beyond a reasonable doubt:

You intentionally captured an image of a private area of an individual without that person's consent under circumstances in which the individual had a reasonable expectation of privacy.

Example: Defendant Dickie admits to going to a nude beach. He admits taking pictures of Victim Vivian at the beach. He admits that Vivian was nude in the images. He admits even that he didn't have Vivian's consent to take the picture, which upset her. Nonetheless, he insists that he can't be guilty under 18 U.S.C. §1801(a) because the beach had no restrictions on photography. Is Dickie correct or is he guilty?

Conclusion: Dickie willfully captured an image showing Vivian's private areas without her consent. These are elements of the crime. But Vivian had to have a reasonable expectation of privacy under the circumstances; in other words, she had to be in a place where she could expect not to be photographed nude. A nude beach without photographic restrictions is hardly such a place. Thus, Dickie is correct.  

What Can I Do If I'm Charged With Revenge Porn?

The State of California treats Revenge Porn as a serious offense. If you're charged with Revenge Porn, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Law Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. 

If you or someone you know has been arrested for, or charged with, Revenge Porn, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact the Kann California Law Group today to schedule your free and confidential consultation.

References

[1] “A person intentionally distributes an image described in subparagraph (A) when that person personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image.” See California Penal Code [CPC] §647 (j) (4) (B).

[2] “As used in this paragraph, “intimate body part” means any portion of the genitals, the anus and, in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.” See CPC §647 (j) (4) (C).

[3] See CPC §19.

[4] See above.

[5] See Endnote 3.

[6] See above.

[7] See 18 United States Code [U.S.C.] §1801 (a).

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