It used to be that nude pictures and sexually explicit videos were almost exclusively found in behind-the-counter magazines, specialty theaters and shops and via pay-per-view cable access. But these days, everyone has a smartphone with a camera, and one recent study found that about 40% of American men and women have sent a sexual picture to someone else at some point in their lives. The actual number is probably a lot higher – which is fine, because such exchanges between consenting adults is perfectly legal.
Where we run into problems is when images are shared or threatened to be shared without the consent of the person depicted. This is known as sexual cyberharassment, or “revenge porn,” and it’s been outlawed in Florida since 2015.
Fort Lauderdale criminal defense lawyer Richard Ansara has successfully represented clients accused of sexual cyberharassment in Florida. Prosecutors have a high proof burden to clear with these cases. No matter how solidly it seems the cards are stacked against you, there are almost always ways a skilled defense lawyer can minimize the fallout.
What Exactly Is Sexual Cyberharassment?
F.S. 784.049 defines sexual cyberharassment as using electronic communication devices to send or publish sexually explicit images or videos of another person without their consent.
A few additional stipulations:
- The materials in question meet the definition of “sexually explicit,” as outlined in F.S. 847.001. That means they either depict nudity, as explained in F.S. 847.001(11), or sexual conduct, as defined in F.S. 847.001(19).
- The person had a reasonable expectation of privacy with respect to those images. If the person depicted created the explicit materials with the intention that it would be public (for example, if they were involved in making a pornographic film for profit), then distributing those images wouldn’t be considered sexual cyberharassment. That said, it’s worth noting that just because a person willingly creates and/or sends someone sexually explicit materials of themselves does not automatically mean they forfeit their right to privacy of those materials. A person could send a revealing picture of themselves to their spouse, but that doesn’t give the spouse permission to send it to others without permission.
- The images must contain or convey identifying information of the person depicted. That doesn’t necessarily mean the person’s face is shown or their name published. It could be the showing of a tattoo, place of residence, contact information, or anything that could be used to connect the videos or images to the person. If there’s nothing that identifies the person shown, it’s not sexual cyberharassment.
- Prosecutors must prove malicious intent. The statute requires the state to prove the defendant disseminated or published the materials in question with the intention of causing substantial emotional distress to the person pictured. If it was an accident or a legitimate miscommunication about whether they had the person’s consent, it could raise reasonable doubt sufficient enough to sidestep a conviction.
Sexual cyber harassment in Florida is a first-degree misdemeanor, carrying a maximum penalty of up to one year in prison. Second or subsequent offenses are charged as third-degree felonies, which can be punished by up to 5 years in prison. Penalties could also be more serious if the alleged victim was a minor under 16 and/or the defendant’s involved extortion, cyberstalking with credible threats, or violation of a restraining order.
What if the Images Are AI-Generated?
Increasing advancements in computer technology have made it easier than ever for people to create so-called “deep fakes” with artificial intelligence. “Deep fakes” are pictures or videos that are digitally altered to appear as though they are either someone else or engaged in acts that they were not.
There have been many examples of “deep fakes” cropping up around political figures or celebrities. In the context of sexual cyberharassment, they usually involve the face of a recognizable person being digitally added to a sexually explicit image, video or audio track to make it appear as if they engaged in a sexual act or depiction, when in fact they did not.
This initially raised fair questions about legal accountability for harm when the image or video didn’t actually show the victim in question. Florida lawmakers have since passed a law to address this. F.S. 836.13. It classifies sharing such images as a third-degree felony, punishable by up to 5 years in prison. (Adding a disclaimer that the depictions aren’t real isn’t a viable defense.) It also paves the way for victims to recover at least $10,000 in financial damages plus attorney’s fees.
If you are arrested for sexual cyberharassment or any related crime, it is imperative that you protect your rights, freedom and reputation. Broward County Criminal Defense Lawyer Richard Ansara has experience specifically in handling these types of cases, and is committed to fighting for the best possible outcome for clients.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
More Blog Entries:
Defense Attorney Richard Ansara Quoted by Sun Sentinel on Proposed Florida Stalking Law, Feb. 3, 2024, Fort Lauderdale Criminal Defense Lawyer Blog