Amidst all the heavy-breathing conservative legislation fussing over kids’ genitals and objectionable sex (seriously: HB 1107 is not about religious freedom; it’s about sex), there is one bill touching on sexuality on which Democrats and Republicans can and should come together.
House Bill 1243 adds some language (underlined text) to our current statute on photographic privacy to make clear that you can’t spread naked pictures of your girlfriend around the Internet without her permission:
Section 1. That § 22-21-4 be amended to read:
22-21-4. No person may use or disseminate any visual recording or photographic device to photograph or visually record any other person without clothing or under or through the clothing, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to self-gratify, to harass, or embarrass and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. No person may electronically disseminate a visual recording or photograph of another person without clothing or under or through the clothing of the person, or with the person depicted in a sexual manner, without the consent of that other person. A violation of this section is a Class 1 misdemeanor. However, a violation of this section is a Class 6 felony if the victim is seventeen years of age or younger and the perpetrator is at least twenty-one years old [House Bill 1243, introduced 2016.02.04].
I do question the wording of this amendment. The “disseminate” in the first sentence of SDCL 22-21-4 would seem to encompass the “electronically disseminate” HB 1243 adds in what would become the second sentence. The only language in HB 1243 that seems non-redundant (hmm… dundant?) is the addition of “or with the person depicted in a sexual manner.” As written, HB 1243 separates that condition from the “intent to self-gratify, to harass, or embarrass and invade the privacy of that other person” qualifier of the first sentence.
Perhaps House Judiciary, where HB 1243 makes its first stop, could simplify the language by rearranging its new language and striking the always problematic “intent” clause:
No person may use or disseminate any visual recording or photographic device to photograph or visually record any other person without clothing or under or through the clothing, for the purpose of viewing the body of, or the undergarments worn by, that other person, or depict any other person in a sexual manner, without the consent or knowledge of that other person
, with the intent to self-gratify, to harass, or embarrass and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy.A violation of this section is a Class 1 misdemeanor. However, a violation of this section is a Class 6 felony if the victim is seventeen years of age or younger and the perpetrator is at least twenty-one years old.
Either wording does pose some interesting questions about camera ethics in an era where nearly everyone is packing a camera and using it to document every hour of daily life. Suppose you’re at a party and you Tweet a picture of your friends having a good time. Suppose a couple of your friends in the photo—or maybe even a couple of people in the background—strike a sexually suggestive pose. (I hear that people suggest sex at parties all the time.) Would Tweeting that picture make you guilty of a Class 1 misdemeanor under HB 1243?
And at peril of sending the comment section off on a blue streak, just what does it mean to depict a person in a sexual manner? We all recognize the obvious Justice Stewart cases, the kind of revenge porn that HB 1243 rightly targets, but what about the borderline? Does a photographic or videographic subject exhibit a “sexual manner” just by parting the lips and tossing the head back? By eating a banana? By looking hot?
Actually, North Dakota beats us to that blue streak. North Dakota is one of 26 states that have revenge porn laws. They passed their revenge-porn statute, SB 2357, last year. SB 2357 (now Section 12.1-17-07.2 of North Dakota Century Code) offers clear definitions of “intimate image” and “sexually explicit conduct” that would trigger the revenge-porn penalty. SB 2357 also makes clear that Internet service providers and other companies who would provide the conduit through which jerks might post those sexually explicit pictures are not complicit in the invasion of privacy. Perhaps South Dakota has other statute that makes that exemption clear, but our HB 1243 sponsors and House Judiciary might want to check.
HB 1243 is a reasonable bill, meant to protect vulnerable individuals from jerks. Let’s hope Democrats and Republicans work together to get the language just right.
What if the victim is 14 and the perp 13? Neither is of the age of consent and minors aren’t capable of consent,anyway. Unless I totally missed it,there seems to be some details missing.
With 26 states already having revenge porn laws it’s not as though we’re entering into uncharted waters here. A day or so spent studying other states laws and experience with prosecutions should help point the way.
Weren’t there more pressing problems in the state to deal with? Kansas passed a law that allows people on gubmint assistance to spend only $25 per day(with a dollar bank fee per transaction subtracted) on food,but they can use that money to purchase guns.
You hear people suggest sex at parties all the time?
Hmmmmm. Maybe I SHOULD get hearing aids. Maybe I should go to parties. Maybe I should stop being such a jerk, so people would invite me to parties. Maybe I should stop being such a jerk so people would suggest sex.
Anyone have any suggestions? (Heh-heh-heh)
Whoops! I really shouldn’t omit the “that” in that sentence. :-) Edit!
Politicians who obsess about talking and thinking about sex just aren’t getting any. It’s been that way since High School.
They could also add a sentence that those who want to go the the other bathroom can not take pics under the stalls for their own use either even if they do not send the pics to others.
I wonder if the electronic dissemination is to prevent sexting?
Isn’t any electronic dissemination covered by the “disseminate” in the existing statute? Wouldn’t the existing statute already make nonconsensual sexting (with pix, not just free-speech naughty words) illegal?
What if consent is given (to photograph and disseminate) when a couple is together but later disseminated after said couple breaks up? I could see a good lawyer, or maybe not good lawyer, argue ambiguity between consent to photo and consent to disseminate. What is supposed to happen when someone takes a photo in this day and age?
In our agency we have to get separate written consents to take photos or videos and to distribute. Each consent to photograph can last only a certain period of time, generally one year. It would also be illegal and constitute abuse to photograph someone nude or in a sexual way, even with permission, if that person was not legally able to give consent prior to the photo or the distribution, or if you are in some sort of professional (eg. teacher, caregiver, pastor, etc.) relationship. Each consent to distribute must be specific to a use, eg., brochure, news release, video, internet site, etc., and separate written releases must be made for each use.
Mr. Pay, you are wise in the matters of photo distribution and we would all be the better the heed your advice.
MTR, that’s an interesting question about consent followed by a change of mind and/or relationship. As written, statute appears to require consent and knowledge for both taking and disseminating images. I would assume that a person can take back consent. If John and Mary make a sex video while in love, and if Mary says, “Sure, John! Put it online!” then John can put it online without penalty. If John and Mary then break up and Mary withdraws her consent, then John can no longer disseminate that video. Proving consent at any point could be a legal nightmare, since I doubt John and Mary and other kinky couples are writing up consent forms for their naughty videos. But I think that law would still work in favor of the person who doesn’t want the video distributed. If Mary steps forward and says she doesn’t consent to that salacious video of herself circulating, then all the assertions John can make about previous consent become irrelevant.
A moment on the lips,forever on the hips,Cory.