Drop The Internet And Put Your Hands Where I Can See Them

"Revenge" porn is the sort of thing that should offend anyone with even the barest hint of a conscience. But should it be a criminal offense?

The Illinois General Assembly and Governor Quinn think so. Recently signed into statute law, Public Act 098-1138 makes the non-consensual dissemination of private sexual images a crime (h/t E.N. Brown).

Ignore for a moment the vague wording of the statute ("'Intimate parts' means the fully unclothed, partially unclothed or transparently clothed genitals, pubic area, anus, or if the person is female, a partially or fully exposed nipple, including exposure through transparent clothing." [emphasis added]) and consider instead the common-sense jurisprudence.

I don't pretend to understand folks' penchant for taking nude photographs or video. There already exists oceans of pornography cheaply and readily available and let's face it: most amateur photographers don't know the first thing about lighting, framing, mise en scene or the countless other photographic and cinematic tricks to making others look good on film, particularly when disrobed. Still, it is evidently a choice people make, and I have no particular moral authority to gainsay what private people elect to do with their time and talent. Even if it is sending each other grainy, wobbly shots of their grubby buttholes or whatever. What I don't quite grasp is how this sort of thing isn't resolvable in tort. It seems far more akin to a strain of defamation law than to an actual jeopardize-the-community crime.

Whatever the case may be, the Governor's office has held up the statute as a model for the rest of the country. And if it manages to survive First Amendment challenges (I am not willing to bet one way or the other on this, though I confess at least a little skepticism to its robustness), I think it may well have a chance to do just that.

Why? Because BATNA disparity. Though less so than yesteryear, there's still a very large downside to having your nude pictures publicized, a downside that does not exist for the one doing the publicizing. This statute, or ones like it, aim directly at this imbalance. The moral intuition is clear: BATNA parity. If for no reason other than this, it'll be a rousing success.

As for the unintended consequences? Well, I'm sure those will sort themselves out eventually. It's not like America is running short on prison space or anything, nor that public defender offices are desperately overbooked and understaffed. And hey, SWAT raids never go wrong, so why not just criminalize more behavior ordinarily reserved for tort, right? Cops don't accidentally kill or maim non-threatening civilians. This is America, after all.