The rapid expansion and accessibility of technology, social media, and internet access has enabled it to become common practice for people to publish sexually explicit images of another to internet websites and social media platforms. These images are circulated and disseminated through electronic means without the consent of the person depicted –and contrary to their reasonable expectation of privacy.
These explicit images are uploaded for no legitimate purpose and with the intent of causing substantial emotional distress to the person depicted. The continued existence of these images online creates a permanent unescapable record of the victim’s sexually explicit private conduct to nudity which can cause significant psychological harm. The state of Florida has taken measures to safeguard the psychological well-being and privacy interests of the victims of sexual cyberharassment in the form of “revenge porn.”
In the state of Florida “revenge porn” and all other forms of digital harassment are considered unlawful pursuant to Florida Statute 784.049. Florida statutes refer to such harassment as sexual cyberharassment which may be punished by injunctive relief, jail time, criminal fines, monetary damages, or reasonable attorney’s fees if applicable.
According to the Florida Statutes, sexually cyberharassing a person means to publish a sexually explicit image of a person through electronic communications without the depicted person’s consent, for no legitimate purpose, to cause substantial emotional distress, and contrary to that person’s reasonable expectation of privacy.
An offender who willfully and maliciously sexually cyberharasses another person commits a first-degree misdemeanor. The conviction of a first-degree misdemeanor will be penalized up to $1,000 in fines and up to 365 days in county jail, or alternatively up to 365 days of county probation. Engaging in revenge porn takes cyber harassment to the next level as it is done willfully and maliciously, and an exposure of sensitive content to large audiences online.
When an adult is the victim of revenge porn the perpetrator may be liable for a criminal charge of harassment for willfully and maliciously distributing explicit images of another without their consent. The penalties for harassment can range from a non-criminal injunction preventing a person from engaging in such conduct to a third-degree felony charge where a perpetrator could face up to five years imprisonment and a $5,000 fine.
An adult that has been the victim of revenge porn may seek an injunction for domestic violence, dating violence, or any other court-imposed prohibition of conduct. If the conduct repeats or is done in violation of the court-imposed injunction the perpetrator will then face prosecution for their conduct, and may be arrested, without a warrant, by law enforcement if they have probable cause that there has been a violation of an injunction.
According to Florida Statute 784.048 to cyberstalk means to engage in a course of conduct to communicate words, images, or language though the use of electronic systems. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a child under 16 years of age commits the offense of aggravated stalking, a crime for which the penalty can be up to five years imprisonment and a $5,000 fine.
When children are the victim of revenge porn the offender has the initial issue of engaging in harassing behavior, and the additional crime of distributing child pornography which is also a crime in the state of Florida. The mere exchange of explicit photographs is a crime for children –even if both children consent to the sharing of photos. In the state of Florida, the act of sexting alone may subject children to penalties ranging from a non-criminal citation to a third-degree felony charge where a perpetrator could face up to five years imprisonment and a $5,000 fine.
First offenses of sexual cyberharassment result in lower sentencing and sanctions. However, a person who has one prior conviction for the crime and who commits a subsequent offense commits a felony of the third degree. A felony of the third degree is punishable by up to five years in federal prison or probation and up to $5,000 in fines and court costs. Victims of sexual cyberharassment may also seek civil damages in addition to the criminal prosecution of the offense exposing the offender to additional financial liability.
If you are charged with sexual cyberharassment or cyberstalking it is important to consider if you have a defense against the alleged crime you committed. For such charges with adult victims an offender may provide proof to the prosecuting agency that the adult provided consent for their explicit images to be shared through electronic systems. An offender may also not be liable for such distribution if they themselves did not publish the images, or if there was no malicious intent when the images were shared. It is up to the prosecuting agency to prove beyond a reasonable doubt that the distribution of the images was done willfully and maliciously.
Please call O’Mara Law Group to schedule a free initial consultation if you’re interested in learning more about Florida’s approach to revenge porn and digital harassment charges.
