Katie Hill has resigned from Congress. She was forced to make this decision after her ex-husband and right wing media trolls enacted a smear campaign in which they published nude photos of the congresswoman without her consent[1]. Hill is a victim, yet she is the one forced to face the consequences for the actions of the perpetrator. This is a trend in the realm of revenge pornography. The crime is relatively new in terms of being codified and prosecuted, but one could speculate that the practice has existed since people began taking photos[2]. The crime of revenge porn exists at the intersection of pornography and sexual harassment, therefore an understanding and history of both is necessary in order to fully grasp why revenge porn faces legal hurdles and why stories like those of Congresswoman Katie Hill continue to persist.
Pornography is notoriously difficult to define. When asked to define pornography, Supreme Court Justice Potter Stewart stated famously, “I know it when I see it.” Clearly, this is a very difficult legal standard to apply. Despite this difficulty, researchers and legal experts have still gone to great lengths in an attempt to define pornography. In a study attempting to do just that, 38 pornography researchers from a variety of disciplines came togeher to consolidate a concise definition[3]. No two experts had the same definition. There were overlapping concepts and phrases such as “sexually explicit media,” but disagreements came when determining whether or not the intent was necessary to include in the definition. Some researchers argued that it was impossible to define because pornography was not a thing but a concept that changes with the society in which it exists and those power structures.
The fact that pornography is so difficult to define is one reason for why its criminalization has undergone so many changes throughout history. The first example of the United States criminalizing pornography is with the passage of the 1873 Comstock Acts[4]. These acts were part of a larger set of reforms targeted at morality. The element that directly addressed pornography was the ban on the possession and distribution of obscene materials. Determining whether or not material was obscene was left to the judge’s discretion, but they often chose to apply the Hicklin Test which deemed obscene material to be that which intended to corrupt or deprave the mind of the consumer[5].
Changes have occured throughout history regarding the illegality of pornography and the majority of the reversals of its prohibition are the result of Supreme Court cases. However, prior to the cases that would allow for the possession of pornography, the Court first upheld its ban in the case Roth v. United States. In this 1957 decision, the court ruled that pornography was not to be protected by the First Amendment[6]. This changed with the court’s ruling in the 1969 case Stanley v. Georgia. In that decision, the court ruled that individuals do have the right to own obscene material and that it cannot be seized by the government. The court did however differentiate between private ownership and production and distribution, which the court held could be subject to regulation[7]. The case that most opened the floor to both posession and distribution of pornography was the case of Reno v. American Civil Liberties Union. The court ruled that laws banning “indecent transmissions” were too broad and a violation of First Amendment rights[8]. By examining these cases and rulings, it is evident that overtime, laws regarding pornography and more broadly, the posession of obscene materials, have become less paternalistic. The court and lawmakers have increasingly favored individual rights and freedoms rather than laws attempting to control the morality of society.
Pornography is not what made Katie Hill resign. It was revenge pornography, something that is better considered a subset of sexual harassment than of pornography. Revenge pornography may be defined as a “form of technologically faciliated sexual violence wherein a perpetrator distributes (typically electronically) nude and/or sexually explicit photos and/or videos of an individual without their consent.”[9] The classic story of how revenge porn comes to be is when a person — in most cases a female — sends photos to a romantic partner with the belief that only that person will view the image. When the relationship ends, the partner — most often male — disseminates the images in an act of revenge. For a long time, states did not have laws prohibiting this, primarily because they could not define what action to criminalize. The photos had often been taken by the victims themselves and because they were only released one time, the action often could not meet standards set for harassment statutes.
Prior to 2014, only California and New Jersey had laws specifically targeting and criminalizing revenge porn[10]. By 2018, 38 states and the District of Columbia had laws implemented as well. The newness of these laws means that they are still developing and changing based on new cases and information that is brought to light. Most state laws also include the intent of the distributor in the legal statute[11]. The mass influx of the introduction of these laws is likely correlated with the fact that new social media platforms made the practice of revenge porn much more accessible as well as much more visible.
An important controversy that has arisen with the recognition of revenge porn as a criminal act, is to what extent should the victim be held accountable. Before discussing the history of this controversy, it is imperative to recognize its absurdity. It is only in crimes against women that the victim’s actions are taken into account when determining the extent to which the perpetrator must be held accountable. Other than with revenge form, the history of victim blaming is best exemplified in cases of rape and sexual harassment. Rape victims have been held accountable for their abuser’s actions since biblical times[12]. The women in the bible who are raped are first noted as beautiful or sexual creatures which is the the reason for their rape, rather than the wickedness of the rapists.
Victim blaming has not ceased to exist in modern times. Prior to state statutes and the Violence Against Women Act, defense attorneys in rape trials were not prevented from exposing the victim’s reputation or sexual history. This practice shifted the responsibility of the crime to either be on both the defendant and the victim or, with an especially skilled defense attorney, onto the victim completely. By bringing up the victim’s sexual history or even what she was wearing or doing on the night of the assault, the jury then may ask the question “was she asking for it?”
This severely flawed logic has since been applied to victims of revenge porn. In order to prevent revenge porn, women are regularly told not to send naked photographs or videos. This is very similar to women throughout history being taught to not wear suggestive clothing or walk alone at night. It has been believed that these are the only ways to stop the dissemination of revenge porn or to prevent rape. These are the solutions rather than teaching men not to violate privacy by sending out explicit photos or teaching men not to rape.
Another element of the revenge porn crime that makes it comparable to rape and sexual harassment is that it brings into question the concept of consent. Consent being context-explicit was only recently recognized in crimes of rape with the understanding that consent to previous sexual acts does not imply consent to all sexual acts. This concept is still muddy with revenge porn. A woman sending a nude photo to a partner does not imply consent for that partner to freely share the photo. Context-explicit consent is not difficult to understand when it comes to sharing private information with a financial advisor or medical professional, yet it is still failed to be understood in the scope of revenge porn[13].
Pornography and sexual harassment come together at the horrific junction of revenge porn. The most recent victim is Congresswoman Katie Hill. However, it is only her high profile that has brought the case to the front page and only some people recognize her status as a victim. Many others choose to only see her as a politician being investigated for ethics violations. When examining the available facts, it is clear that she is a victim of revenge porn. If someone of her status with such a definitive case in her favor can still face wholly unfair repercussions, one can only imagine what girls who are victims of revenge porn but lack Hill’s resources and support system must face. There is a general lack of understanding in the United States about what revenge porn is and how its perpetrators should be punished. After examining the history of pornography and its criminalization as well as the history of victim blaming in the context of rape and sexual assault, it is clear that revenge porn must be treated as a a subset of sexual harassment, not of pornography. Revenge porn must not be placed in the same basket as pornography with its protections under the First Amendment. Revenge porn is sexual harassment and just as victims of rape are protected from having their character questioned as a rapist’s defense, victims of revenge porn must not be accountable when images they shared in confidence are disseminated without their consent. Congresswoman Katie Hill should not have been forced to resign and hopefully that injustice will bring light to the crime of revenge porn and result in more serious legal action being taken against those who continue to perpetrate it.
[1] Emily Cochrane. 2019. “Katie Hill Will Resign From Congress Amid Ethics Investigation.” The New York Times, October 27, 2019. https://www.nytimes.com/2019/10/27/us/katie-hill-resigns.html?searchResultPosition=2.
[2] Sarah Esther Lageson, Suzy McElrath, and Krissinda Ellen Palmer. 2019. “Gendered Public Support for Criminalizing ‘Revenge Porn.’” Feminist Criminology 14 (5): 560–83. https://doi.org/10.1177/1557085118773398.
[3] Alan McKee, Paul Byron, Katerina Litsou, and Roger Ingham. 2019. “An Interdisciplinary Definition of Pornography: Results from a Global Delphi Panel.” Archives of Sexual Behavior, September. https://doi.org/10.1007/s10508-019-01554-4.
[4] “Pornography, History of | The International Encyclopedia of Human Sexuality — Credo Reference.” n.d. Accessed October 28, 2019. .
[5] Brandon R. Burnette. n.d. “Comstock Act of 1873.” Accessed October 28, 2019. https://www.mtsu.edu/first-amendment/article/1038/comstock-act-of-1873.
[6] “Pornography, History of | The International Encyclopedia of Human Sexuality — Credo Reference.”
[7] “Stanley v. Georgia.” n.d. Oyez. Accessed October 28, 2019. https://www.oyez.org/cases/1968/293
[8] “Reno v. ACLU.” n.d. Oyez. Accessed October 28, 2019. https://www.oyez.org/cases/1996/96-511.
[9] Sarah Esther Lageson, Suzy McElrath, and Krissinda Ellen Palmer. 2019. “Gendered Public Support for Criminalizing ‘Revenge Porn.’”
[10] Sarah Esther Lageson, Suzy McElrath, and Krissinda Ellen Palmer. 2019. “Gendered Public Support for Criminalizing ‘Revenge Porn.’”
[11] “State Revenge Porn Laws.” n.d. Findlaw. Accessed October 28, 2019. https://criminal.findlaw.com/criminal-charges/revenge-porn-laws-by-state.html.
[12] Schoellkopf, Julia. 2012. “Victim-Blaming: A New Term for an Old Trend.” Lesbian Gay Bisexual Transgender Queer Center, May. https://digitalcommons.uri.edu/glbtc/33.
[13] Citron, Danielle Keats, and Mary Anne Franks. 2014. “Criminalizing Revenge Porn.” Wake Forest Law Review 49 (2): 345–91.