Alabama has a new law designed to protect people against "revenge porn".
Under the new law if somebody puts up a private image of someone who is naked or engaged in some sort of sexual act and the image is posted without their consent, it is a crime.
A private image under Alabama law simply means, a photograph or video of the person with that person is identifiable and they are engaged in any kind of sexual act or nudity or other sexual conduct.
For it to be considered a private image, the person who is depicted must have had a reasonable expectation of privacy. I'm going to call this the "for your eyes only" test.
In other words, the person agreed to allow the image be created believing It would remain confidential. So, the naked picture your girlfriend sent you or allow you to take which was meant for your eyes only can't be distributed on the Internet after you break up if it was meant for your eyes only. And, of course, any images depicting involuntary sexual conduct, like photographs taken during a gang rape or true sexual bondage photographs are not legal.
A first-time violation of this law is a class A misdemeanor, carrying up to one year in jail. A second conviction is a class C felony; it carries up to 10 years in prison
There are defenses to this crime. One of them is going to be whether or not there was a reasonable expectation of privacy. For example, a stripper at a bachelor party who poses for photographs with a bunch of drunken guys after jumping out of the cake probably can't complain that she had a reasonable expectation of privacy after posing for a bunch of photographs. The new law itself includes some built-in defenses such as the image was made for medical treatment or legal proceedings. For example, a photograph taken of bite marks on a woman's breast might have been taken to establish the severity of injuries in a legal proceeding and photographs of sores or other lesions on one's private parts might be taken for purposes of medical diagnosis.
One question is whether a conviction for distributing a private image is considered a sexual offense and whether or not a conviction for this crime requires a person to be registered as a sexual offender.
The answer to this question is not as direct as you would think. Alabama's sex offender laws list a number of crimes that specifically fall under the statute in this particular crime is not listed. But that's not the end of the story because Alabama law says that any criminal offense can be a sexual crime if it is sexually motivated. In other words, if the prosecutor elected to pursue this matter as a sexual crime he could do so. If the prosecutor could establish the crime was sexually motivated, a person convicted of this could fall under Alabama sex offender laws and the sex offender registration and notification provisions would apply. As to whether or not this will happen, only time will tell.
If you're accused of this crime, and you'd like our help, just contact us here:
If you'd like to read the actual law for yourself, it's reproduced here:
Section 13A-6-72. Distributing a private image with intent to harass, threaten, coerce, or intimidate the person depicted
(a) A person commits the crime of distributing a private image if he or she knowingly posts, emails, texts, transmits, or otherwise distributes a private image with the intent to harass, threaten, coerce, or intimidate the person depicted when the depicted person has not consented to the transmission and the depicted person had a reasonable expectation of privacy against transmission of the private image.
(b) For purposes of this section, private image means a photograph, digital image, video, film, or other recording of a person who is identifiable from the recording itself or from the circumstances of its transmission and who is engaged in any act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, as defined in Section 13A-12-190, genital nudity, or other sexual conduct. The term includes a recording that has been edited, altered, or otherwise manipulated from its original form.
(c)(1) For purposes of this section, a reasonable expectation of privacy includes, but is not limited to, either of the following circumstances:
- The person depicted in the private image created it or consented to its creation believing that it would remain confidential.
- The sexual conduct depicted in the image was involuntary.
(2) There is no reasonable expectation of privacy against the transmission of a private image made voluntarily in a public or commercial setting.
(d) It is a defense to distributing a private image if the distribution of the private image was made in the public interest, including, but not limited to, the reporting of unlawful conduct; the lawful and common practices of law enforcement, legal proceedings, or medical treatment; or a bona fide attempt to prevent further distribution of the private image.
(e) A violation of this section is a Class A misdemeanor. A subsequent adjudication or conviction under this section is a Class C felony.
