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Michigan's law, passed in April 2016 after a few legislative attempts, does not go after the websites or domaines, but after the individual who posts the incriminating and non-consensual images, on a computer or other electronic device or medium of communication such as a cell phone. It is a misdemeanor, punishable by not more than 93 days in jail and or a maximum fine of $500. A second and subsequent violation would be a misdemeanor punishable by imprisonment for not more than a year and/or a maximum fine of $1,000.
The law is very specific on what constitutes revenge porn, and how someone is targeted and vilified, with several steps needing to be met before qualifying for prosecution, including that the "person is identifiable from the sexually explicit visual material or information displayed...The person obtains the sexually explicit visual material of the other person under circumstances in which a reasonable person would know or understand...was to remain private; The person knows or reasonably should know that the other person did not consent to the dissemination of the sexually explicit visual material...'Sexually explicit visual material' means a photograph or video that depicts nudity, erotic fondling, sexual intercourse, or sadomasochistic abuse."
Yet, while everyone recognizes that it is an act that is morally wrong, as efforts grow to combat revenge porn and the efforts to post nonconsensual pornography, civil libertarians, including the American Civil Liberties Union (ACLU) question First Amendment rights of the perpetrators.
"Our main concern is that there are other laws that can be used to deal with libel and slander. We had to look at privacy and speech, issues we care deeply about," said Shelley Weisberg, political director, ACLU of Michigan. "This kind of revenge porn is not something we would like to see, but we have to be careful of what we criminalize. We cannot be frivolous about what free speech means. On the one hand, Americans want a free internet – on the other hand, we want privacy."
Those who deal intimately with victims of revenge porn, also known as involuntary pornography, disagree with that stance. Their viewpoint is that victims' lives are being destroyed, and perpetrators should not be protected because it is not a civil liberties issue.
Weisberg of the ACLU said they worked with the legislature to help craft a statute that "was as constructive as possible. We did not support it; we went neutral," she said. "We don't want to support new criminal laws unless there is a clear infringement of fundamental civil rights that cannot be addressed by existing law. (Here, there is) an unmistakably clear definition of who bears the burden of proving that a disclosure was nonconsensual."...continued on page 4