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Revenge Porn Law: Rob Kardashian, Blac Chyna, and Nonconsensual Pornography

Revenge Porn Law: Rob Kardashian, Blac Chyna, and Nonconsensual Pornography

On July 5, 2017, Rob Kardashian, of the Kardashian reality TV family, posted a series of revealing nude photos of his ex-fiancee, rapper and model Blac Chyna, on his Instagram and Twitter accounts.

Since the posting of these sensitive images and comments illuminating the possible motives for his actions (e.g., revenge and retaliation for infidelity and drug abuse), speculation has abound over whether Kardashian violated California’s law banning nonconsensual pornography (or, colloquially, “revenge porn”).

As in 38 states and the District of Columbia, it is illegal in California to intentionally and without consent distribute certain intimate photos of another person for the purpose of harassing, embarrassing, or hurting that person. When “revenge porn” cases are brought, they most often involve the failure of a romantic relationship.

In this article, I will break down the various elements of California Penal Code § 647(j)(4) and discuss whether Kardashian could be found guilty of this crime.

As of the time this article is published, Rob Kardashian has not been charged with any crime. If he is charged with violating California’s “revenge porn” statute, the prosecution will have the burden of proving his guilt beyond a reasonable doubt, as required by the Fifth and Fourteenth Amendments of the U.S. Constitution.

California’s Law Banning “Revenge Porn”

Elements of the crime

California Penal Code § 647(j)(4) criminalizes the intentional distribution of nonconsensual pornography (“revenge porn”) as follows (words in blue are defined below):

 

  1. Defendant intentionally distributed an image of the intimate body part(s) of another identifiable person, or an image of the person engaged in sexual intercourse, sodomy, oral copulation or masturbation;
  2. Defendant and the person agreed or understood that the image would remain private;
  3. Defendant knew or should have known that distributing the image would cause the person serious emotional distress; and
  4. The person depicted suffered serious emotional distress.

Key definitions

As with much else in law, it all comes down to the definitions! Here are the key definitions for the highlighted terms above:

“[I]ntentionally distributes” = “. . . personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image.” (Penal Code § 647(j)(4)(B))

[I]ntimate body part” = “. . . 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.” (Penal Code § 647(j)(4)(C))

Defenses

Penal Code § 647(j)(4)(D) specifically lists the following defenses, each of which would absolve the defendant of criminal liability:

i. Image was distributed in the course of reporting an unlawful activity;

ii. Image was distributed in compliance with a subpoena or other court order;

iii. Image was distributed in the course of a lawful public proceeding.

For example, let’s say that Victoria is the victim of an attempted rape by Robert. As she is fighting off a semi-nude Robert, she manages to film a 5-second video of the encounter, which includes Robert’s penis. She reports the matter to the police and provides the video.

Victoria is not guilty of violating § 647(j)(4)(D) because she distributed the video “in the course of reporting an unlawful activity.” As a side note, she also has a strong defense in that there is no way Robert, the attempted rapist, can successfully claim that he and Victoria agreed or understood the video of his crime would remain private.

Did Kardashian Break the Law?

In evaluating Kardashian’s potential criminal liability, let’s examine the following questions:

Intentional distribution of image of intimate body part?

Did Kardashian intentionally distribute an image of the intimate body part of Blac Chyna, or an image of her engaged in sexual intercourse, sodomy, oral copulation or masturbation?

It sure seems like it. Over the course of over an hour, Kardashian posted numerous Instagram and Twitter messages from his own accounts containing the photos. When Instagram suspended his account, he acknowledged on Twitter that Instagram had shut down his account, reposted the photos, and wrote numerous posts seemingly explaining his motives (i.e., intent) for distributing the photos. Here are some of those tweets:

 

This series of tweets, posted at the same time the photos were uploaded, strongly suggests that Kardashian intentionally posted the photos.

On to the next question: Were these images of an “intimate part of the body” within the meaning of Penal Code § 647(j)(4)(C)? This is a resounding YES. Among the photos distributed were photos of the vagina and breasts of a woman matching Blac Chyna’s body type, skin color, and tattoos. This falls under § 647(j)(4)(C)’s definition: “any portion of the genitals . . .  and in the case of a female . . . any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.” (Bold text added).

Were the Photos Private?

As mentioned above, to be found guilty of violating California’s “revenge porn” law,  there needs to have been an agreement or understanding that the photos were to remain private.

Unless Kardashian waives his Fifth Amendment right to remain silent and testifies at trial that he believed the photos were not private, or presents other evidence to establish that they were not  private, it should not be too difficult for the prosecution to prove that these sensitive, intimate photos were considered by the couple to be private.

Causing Serious Emotional Distress

Prosecutors would need to prove that Chyna indeed suffered “serious emotional distress”  as a result of the distribution of the images.

Whether Chyna suffered serious emotional distress is a question of fact for a jury to decide. Assuming that she cooperates with the prosecution, serious emotional distress can be proven through Chyna’s testimony and that of her treating medical providers (if any), such as psychiatrists, psychologists, therapists, etc. As with every element of a criminal case, the jury would be free to decide to what extent–if at all–Chyna suffered serious emotional distress.

Lastly, the prosecution would need to prove that Kardashian knew–or should have known–that distributing the images would cause Chyna’s serious emotional distress. In light of the sensitive, private nature of the photos, and the fact that they had not previously been revealed to the public, a strong argument can be made that Kardashian should have known (even if he did not actually know) that distributing the images would cause serious emotional distress.

Prosectors may even be able to convince the jury that Kardashian actually knew that serious emotional distress would occur. Kardashian’s tweets, which accuse Chyna of infidelity, drug abuse, and being a bad parent, are certainly not helpful to his defense. If Kardashian is charged and goes to trial, the jury may very well decide that these tweets demonstrate that Kardashian intentionally distributed the photos to hurt Chyna emotionally in retaliation for her alleged cheating, drug use, and parenting failures.

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About the author

Neer Lerner is a litigation attorney practicing in California. He is passionate about helping people understand the legal system and protect their rights. He dislikes injustice, eggplant, and wearing a suit.