Under the Revenge Porn Statutes, Even Side Boob is Covered!

In 2014, the legislature criminalized two different “revenge porn” offenses. H.B. 14-1378, 69th Gen. Assemb., 2d Reg. Sess. (Colo. 2014). In 2018, the legislature amended the statutes to prohibit posting “an image displaying sexual acts of an identified or identifiable person” even if the private intimate parts are not visible in the image. 2018 Colo. Sess. Laws 1276-77; People v. Pellegrin, 2021 COA 118, ¶ 44 (Colo. App. 2021).


Currently, section 18-7-107, C.R.S., prohibits “posting a private image for harassment,” which occurs when an individual posts or distributes any photograph, image, or video, “displaying the private intimate parts” of an adult or “displaying sexual acts,” on social media or any website with the intent to harass the person, without the person’s consent or when the individual knew that the depicted person had a reasonable expectation of privacy, and the conduct results in serious emotional distress of the depicted person. Section 18-7-108, C.R.S., prohibits “posting a private image for pecuniary gain,” which involves similar conduct as section 18-7-107, except the individual acts “with the intent to obtain a pecuniary benefit…as a result of the posting, viewing, or removal of the private image.” For both offenses, the legislature defined “private intimate parts” as the external genitalia, perineum, anus, pubes, or “breast of a female.”

In Pellegrin, a division of the Court of Appeals recently held the “breast of a female” included any display of any portion of the breast. 2021 COA 118, ¶ 48. The division rejected the defendant’s argument that his post of his ex-girlfriend’s right side breast provided insufficient evidence to support the offense because her entire breast and nipple were not visible. Id., ¶ 40-48. The division noted the “legislative history reveals a clear purpose to protect victims from the harm caused by the posting of private intimate parts images online and to strengthen protections from those harms” and reasoned that “[i]t does not follow that the harm is avoided or even lessened by posting a photo of only a portion of an identifiable person's exposed breast.” Id., ¶ 47. The division also rejected his constitutional challenges to this interpretation. Id., ¶ 49-58.


In addition to these criminal offenses, in 2019, the legislature also created a separate civil action, the “Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act” in section 13-21-1401 et seq. Under this statutory scheme, an identifiable depicted individual “who has suffered harm from a person’s intentional disclosure or threatened disclosure of an intimate image that was private without the depicted individual's consent has a cause of action against the person” if the person knew or recklessly disregarded the depicted individual’s lack of consent, the image’s privacy, and the fact that the individual was identifiable. § 13-21-1403, C.R.S.


In August 2020, Denver district court Judge Baumann awarded a female plaintiff $40,000 in damages after the man, who she previously dated, sent her estranged husband a sexually explicit video.

 

Lynn Noesner is a Lead Deputy State Public Defender in the Appellate Division. In that capacity, she works to protect the state and federal constitutions and ensure that her indigent clients receive fair process in the criminal system. Lynn received her law degree from the University of Denver Sturm College of Law and her Bachelor of Arts in English and Women's Studies from Colgate University. In her free time, Lynn enjoys yoga, hanging out with her four-year-old daughter, and fighting oppression.

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