The Changing Face of Revenge Porn Laws in Colorado – 18-7-107 – 18-7-108

By Colorado Criminal Defense Lawyer H. Michael Steinberg

The criminal side of Colorado’s revenge porn laws has not changed as of the date of this article (December 2020).

I have recently written on the Colorado criminal revenge porn laws and include this link to that article here. However, a quick review of the criminal consequences of publishing so-called revenge pornography may be helpful.

Colorado’s Criminal Revenge Porn Laws

The crime of so-called “revenge porn” is analogous to that group of Colorado crimes considered to be harassment. Revenge porn involves the intended and non-consensual distribution of pornography as a kind of online harassment. The target of the crime is usually an ex-partner who has obtained images of their former lover and then, usually following a break up, posts sexually explicit images of that person as a form of … revenge or for other similar reasons.

The act of publishing “revenge porn” is a form of very serious cyber sexual harassment, cyber-sexual exploitation, and cyber-bullying. Colorado, as recently as 2018, 2019, and 2020, has legislatively addressed the issue several times by attempting to strengthen the laws to stop the practice.

Colorado joins 40 other states and the District of Columbia in each state’s attempt to outlaw revenge porn.

Quick Note: Colorado’s revenge porn laws covered in this article do not address the very real possibility of a felony charge of Sexual Exploitation of a Child.  Specifically, if a person shares a sexual image online of someone under 18, they could also face child pornography charges under
18-6-403

Criminal “Revenge Porn” Laws in Colorado 18-7-107

Colorado has enacted two different criminal revenge porn laws.

They are:

18-7-107 – Posting a Private Image for Harassment

An actor who is eighteen years of age or older commits the offense of posting a private image for harassment if he or she posts or distributes through the use of social media or any website any photograph, video, or other image displaying the private intimate parts of an identified or identifiable person eighteen years of age or older:

(I) with the intent to harass the depicted person and inflict serious emotional distress upon the depicted person;

(II)(a) without the depicted person’s consent; or

(II)(b) when the actor knew or should have known that the depicted person had a reasonable expectation that the image would remain private; and

(III) The conduct results in serious emotional distress of the depicted person. (Note – it is unclear whether this element is still required after legislation enacted in 2018. However, the Colorado 2019 Criminal Jury Instructions still lists this element as required to prove the crime – see below).

Under Colorado law, a conviction for posting a private image for harassment is a class 1 misdemeanor – sentence – between six months and 18 months in jail, a fine of up to $10,000, or both.

18-7-108 – Posting a Private Image for Pecuniary Gain

An actor who is eighteen years of age or older commits the offense of posting a private image for pecuniary gain if he or she posts or distributes through the use of social media or any website any photograph, video, or other image displaying the private intimate parts of an identified or identifiable person eighteen years of age or older:

(I) With the intent to obtain a pecuniary benefit from any person as a result of the posting, viewing, or removal of the private image; and

(II)(a) when the actor has not obtained the depicted person’s consent; or

(II)(b) when the actor knew or should have known that the depicted person had a reasonable expectation that the image would remain private

Under Colorado Law Posting a Private Image for Pecuniary Gain is also a class 1 misdemeanor- sentence – between six months and 18 months in jail, a fine of up to $10,000, or both.

Some Important Legal Definitions Relevant to Colorado Criminal Revenge Porn Laws

A consistent them in all criminal laws is the requirement that the terms used in those laws are clear and provide fair warning to the public. In these statutes, (compare to the civil statutes below).

Identifiable Private Parts – is defined as “external genitalia or the perineum or the anus or the pubes of any person or the breast of a female.”

Intent – the perpetrator must have the intent to harass and inflict distress upon the other person or with the knowledge that the other person had a reasonable expectation that the image would remain private.

Social Media – is legally defined as any electronic medium, including an interactive computer service, telephone network, or data network, that allows users to create, share, and view user-generated content. (videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail, or Internet website profiles.)

As of 2019, there have been approximately 192 misdemeanor cases for non-consensual pornography filed since the bill became law in July 2014. (Denver Post)

Some Common Defenses to Revenge Porn Allegations

Failure to Prove the Identification of the Alleged Victim – If the prosecution cannot prove the identity of the person in the image published – there is a failure of proof of an essential element of the crime.

No Intent to Publish – if the image was sent privately and exclusively to the intimate partner and was not published by the accused but by others without the complicity of the accused – there is a failure of proof of an essential element of the crime. If there was no intent to gain financially – that is a defense to the second type of revenge porn criminal case (see above).

No Reasonable Expectation of Privacy – the person depicted in the images had no reasonable expectation of privacy at the time the images were taken such as a public area where anyone would have the opportunity to see the images in the photos or video again there is a failure of proof of an essential element of the crime as the alleged victim – the person depicted would have no reasonable expectation of privacy at the time the images were created.

Note: Compare to Colorado Criminal Extortion 18-3-207

The Colorado crime of extortion is very complex and has application to this article.

The crime of extortion is committed when a person tries to induce another person to:

1. Do something against his or her will,
2. Refrain from performing a lawful act, or
3. To extort money or anything else of value,

….by making a substantial threat against that person or someone else to:

1. Confine or restrain someone,
2. Cause economic hardship to someone,
3. Cause someone to suffer bodily injury,
4. Damage someone’s property or reputation; and

…that person threatens these consequences by:

1. Performing or causing an unlawful act to be performed; or
2. Invoking action by a third party — including, but not limited to, law enforcement or other government officials – whose interests are not substantially related to your interests in making the threat.

There are many ways to commit the crime of extortion – relevant here is the following type of extortion which is broken down into the elements of the crime for easier understanding:

The elements of the crime of extortion are:

1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. without legal authority, and
4. with the intent,
5. to induce another person against that other person’s will to perform an act or to refrain from performing a lawful act,
6. made a substantial threat to confine or restrain, cause economic hardship or bodily injury to, or damage the property or reputation of, the threatened person or another person, and
7. threatened to cause the result[s] by performing or causing an unlawful act to be performed.

Extortion applies here if one makes a threat to publish sexualized photos or other embarrassing facts publicly in an attempt to gain one of the advantages listed above. Essentially in the context of this article – extortion means trying to force another person to do something they would not otherwise do by threatening to share a private image or other private material in public.

This crime would, of course, include an attempt or a conspiracy with others to accomplish the goals of the extortion.

Note: Compare Colorado’s Peeping Tom Crime – the Invasion of Privacy – 18-7-801

Colorado law also provides for an analogous crime of Invasion of Privacy

The elements of the crime of Criminal Invasion of Privacy are:

1.That the defendant,
2.in the State of Colorado, at or about the date and place charged,
3.knowingly,
4.observed or took a photograph of another person’s intimate parts, in a situation where the person observed or photographed had a reasonable expectation of privacy,
5.without that person’s consent

18-3- 405.6 – Colorado’s Peeping Tom Crime – the Invasion of Privacy for Sexual Gratification

The elements of invasion of privacy for sexual gratification are:

1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. observed or took a photograph of another person’s intimate parts,
5. without the person’s consent,
6. in a situation where the person observed or photographed had a reasonable expectation of privacy,
7. for the purpose of the observer’s own sexual gratification.

Photograph – is defined broadly to include a photograph, motion picture, videotape, live feed, print, negative, slide, or other mechanically, electronically, or chemically produced or reproduced visual material.

Invasion of privacy for sexual gratification is a class 1 misdemeanor in Colorado (see above) but:

∙ If the victim was a very young minor (under 15), invasion of privacy for sexual gratification is enhanced to a class 6 felony. (One year to 18 months in prison, a fine of $1,000 to $100,000, or both.)

∙ If the perpetrator was previously convicted of unlawful sexual behavior it also becomes a class 6 felony.

∙ If the victim is under 18 or is impaired, physically “helpless,” or incapable of appraising the nature of the conduct, the court may sentence the defendant under the extraordinary risk enhancement for a class 1 misdemeanor – up to 24 months in prison.

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The Civil Damages Side of Revenge Porn – the Increasingly Very Real Threat of a Civil Law Suit for Revenge Porn in Colorado

As noted above, in an unusual step, the Colorado State Legislature added the following civil damages section to the original 18-7-107 criminal law.

The section (immediately below) provides, in a criminal statute, a right to file a civil action for the same criminal acts as are addressed in the crime itself.

Colorado Revised Statutes 18-7-107 (4)(a)

(4) (a) an individual whose private intimate parts have been posted in accordance with this section may bring a civil action against the person who caused the posting of the private images and is entitled to injunctive relief, the greater of ten thousand dollars or actual damages incurred as a result of the posting of the private images, exemplary damages, and reasonable attorney’s fees and costs.

In 2014, Colorado enacted the first of several civil laws for the victims of revenge porn to file cases for civil damages cases that created separate causes of action from the more traditional cause of action for defamation or invasion of privacy.

In 2018 certain issues with the original law were legislatively resolved with amendments to the law included in Colorado House Bill 18-1264.

Among the significant 2018 changes were:

1. To apply the law to someone who is clothed if they are engaged in a sexual act.

2. The removal of the element of need to prove that the victim suffered serious emotional distress.

3. The removal of the “newsworthy event” exception. A newsworthy event was considered an event of “public interest or concern.”

In 2019 Colorado adopted the “Unauthorized Disclosure Of Intimate Images Act – 13-21-1401.

With the passage of the “Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act”  additional protections were provided to the alleged victims of revenge porn.

The Colorado State Legislature online provides the following summary of the new law:

An individual whose body is shown in whole or in part in an intimate image and who has suffered harm from a person’s intentional disclosure or threatened disclosure of that intimate image without the depicted individual’s consent has a cause of action against that person if the person knew:

The depicted individual did not consent to the disclosure;

The intimate image was private; and

The depicted individual was identifiable.

The act provides an exception to the civil action if the disclosure is made in good faith under various circumstances or

if the person disclosing the image is a parent or guardian and has not disclosed the image for purposes of sexual arousal, sexual gratification, humiliation, degradation, or monetary or commercial gain.

A successful plaintiff suing under this law may recover:

The greater of:

Economic and non-economic damages proximately caused by the defendant’s disclosures or threatened disclosures, including damages for emotional distress whether or not accompanied by other damages; or

Statutory damages not to exceed $10,000 against each defendant found liable for all disclosures or threatened disclosures by the defendant;

An amount equal to the gain made by the defendant from disclosure of the intimate image if applicable;

Punitive damages;

Reasonable attorney fees and costs; and

Additional relief, including injunctive relief.

The civil action has a 6-year statute of limitation.

The Most Recent Example of a Successful Civil Suit Under the Colorado Civil Revenge Porn Law

In December of 2020, the Denver Post ran a story of a Colorado woman awarded $40,000.00

It was established to the satisfaction of the judge in that case, that the defendant stole a video of her engaging in sexual conduct with another man and sent the video to the plaintiff’s estranged husband out of jealousy.

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 42 plus years of experience in the courtroom Colorado Criminal Law gives him the edge you need to properly defend your case.