Arizona just passed a new felony law addressing sexting privacy violations.
What does it get right?
- The crime occurs when someone “knows or should have known that the depicted person has not consented to the disclosure.” This means that the behavior that’s targeted here is the nonconsensual distribution of private nude or sexual images.
- The language “should have known” seems to indicate that nude or sexual images should be considered private by default.
- Unlike many of the misdemeanors created to address teen sexting, merely creating sexual images of oneself is not criminalized.
- Unlike many of the existing sexting misdemeanors, this law doesn’t target teenagers, it’s age-neutral.
So what’s the problem?
- Criminal law has been a spectacular failure at addressing the intimacy of violence.
- This law is too harsh. Research suggests that when punishments are harsh, victims are less likely to report and officials are less likely to press charges against intimate partners and acquaintances. Like other forms of sexual violence, the perpetrator of nonconsensual sexting will likely be known to the victim. Most people will not send a partner or even an ex-partner to jail for 2.5 years on a felony conviction, which is the standard sentence in this new law if the person in the image can be recognized.
- Privacy violations might be best handled by civil law. While that system is of course imperfect, I suspect that people would be much more likely to use it to address this kind of violation.
- Decades of research show that people of color, low income people, and LGBTQ people are disproportionately prosecuted for most crimes. There is no reason to suspect that this one would be any different.
- Some people report sharing unwanted sexual images they’ve received (eg. an unsolicited or aggressive “dic pic”) with friends as a way to commiserate and resist this new form of flashing and harassment. Are those actions really the same as a person sending their ex-girlfriend’s nude picture to 100 people in order to humiliate her?