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If the law were to only prohibit the publishing of a photo without the consent of the targeted individual, an argument could be sustained as an invasion of privacy issue, said constitutional law expert Robert Sedler of Wayne State University Law School. Arizona's revenge porn bill was struck down as unconstitutional after an ACLU lawsuit.
"If these are designed to protect a person's privacy, it should withstand a First Amendment challenge. If it is focused on the issue of targeted harm of an individual, it does not create a First Amendment issue," Sedler said. "When it gets into broader language, then it creates a bit of a challenge constitutionally."
Sen. Rick Jones (R-Grand Ledge), who sponsored the revenge porn legislation with Sen. Steve Bieda (D-Warren), had tried to pass this legislation the year before, and acknowledged he made the compromise to make it a misdemeanor in order to get it passed in the state House of Representatives.
Noting the importance of getting the revenge porn law passed, Jones said, "We had heard of many cases of boyfriends/girlfriends or married couples who broke up, and one person used it to control the other's behavior. I had also spoken to a law student whose life was basically ruined when an ex-boyfriend sent photos to all of her law professors and friends. She felt she couldn't go anywhere, and was afraid to apply for a job. We wanted to do something to get revenge porn fixed and stopped."
Paul Walton, chief deputy prosecutor in the Oakland County Prosecutor's Office, said, "We may use this law, or we may not, because revenge porn is a misdemeanor, and it's terribly shocking to the victim. By the time they get to the point to contact the police and prosecute, they come in as true victims. They're humiliated. They're devastated. Then they learn it's a misdemeanor, and their ex, who did this to them, is going to walk out the same door as they are. It's terribly disheartening."
Walton said that while they have this new law, they are still opting to bring other charges. "We may look at stalking, for example," he said. "That can be a one-year misdemeanor, or a five-year felony. There are also some computer related charges that are five-year felonies. There is also posting through electronic means, which can include revenge porn, and that is a felony," he said, which can result in two to five years in jail. He likes that, he said, "because it generally encompasses the same behavior, but it has an emotional component that is useful, and it goes further. We can use it together with the other charges, or with using a computer to commit a crime, which is a five-year felony. While they serve concurrently, it can influence the court in sentencing."...continued on page 5