Gilden on Revenge Porn Laws & Queer People

Andrew Gilden (Willamette University - College of Law) has posted The Queer Limits of Revenge Porn (Boston College Law Review, Forthcoming) on SSRN.  Here is the abstract:

The highly successful movement to combat the nonconsensual distribution of sexual imagery—a.k.a. “revenge porn”—has sent a powerful message that sexual expression through digital technology is an illegitimate basis for stigma, abuse, or the loss of employment. Although spearheaded by feminist advocates to counter the overwhelmingly gendered dynamics of revenge porn, these laws send a powerful message around sexual norms and sexual privacy more broadly that would appear to benefit queer communities especially. Nonetheless, revenge porn laws as enacted by state legislatures and interpreted by state courts are significantly limited in ways that undermine their practical and symbolic benefits for queer people and other sexual minorities. In virtually all of the 48 US states that have criminalized revenge porn, the enacted statutes draw a line between “private” or “intimate” images, which are protected against unauthorized distribution, and “public” or “commercial” images, which are expressly or impliedly excluded. And in some states, a person’s reasonable expectation of privacy only extends to images initially shared in the context of a “relationship.” These limits effectively carve out from protection wide swaths of sexual expression that are incredibly common—and often highly celebrated—within queer communities. Under these laws, sexual images that are taken in public contexts, such as a nightclub or a sexually-themed street fair, or shared in a commercial context, such as Grindr or Onlyfans, can be freely distributed with employers, families, and friends notwithstanding the distributor’s intent to stigmatize, punish, and harass the subject of the image. This paper closely examines the limits of revenge porn laws for queer people and suggests ways of reframing these laws to better acknowledge and respond to queer forms of sexual privacy.