Image-Exploitation-Strategies15

Issue #15 • March 2015

Prosecuting Image Exploitation1 2

Jane Anderson, JD and Supriya Prasad This isn’t about porn; this is about humiliation. There’s [sic] plenty [of] naked women on the Internet who are there by their free will and would love to be looked at. I’m not one of them. That’s the appeal of this. It’s humiliation. –––– ‘Online rape’ is a hard way to say it, but it’s the only way I can make sense of the violation part. You’re sexualizing a person and getting off on the fact that she doesn’t want to be there.

“Elizabeth,” anonymous victim of image exploitation3

— Introduction Image exploitation of this kind takes various forms. In some circumstances, images are consensually created or shared, Image exploitation is a distinct form of sexual abuse, involving but become exploitive and harmful when they are distrib- the nonconsensual creation, possession, or distribution of an uted to others without the victim’s consent. In other cases, image or images depicting the victim as nude, semi-nude, en- offenders record sexual assaults, thereby creating lasting gaged in consensual sexual activity, or being sexually assault- images of the victim’s rape, exponentially extending the ed. The image in question may be a photograph, screenshot, harm caused by the original assault. Negative impacts on the or video recording. By using cell phones, email, social media, victim may include emotional, physical, and financial dam- and the Internet, an offender can distribute photographs4 and age, as well as damage to a victim’s reputation, family life, video to the victim’s circle of friends, family, and colleagues, and intimate relationships. All forms of image exploitation as well as the countless denizens of cyberspace. expose the victim to immeasurable trauma of essentially 1 Newsletter Issue #15 • March 2015

10 infinite duration, permanently invading the victim’s auton- the routine victim-blaming attitudes confronted in other omy and security. crimes of violence against women. This STRATEGIES will identify relevant statutes applicable to the various forms of The comparison of image exploitation to sexual assault is image exploitation and suggest strategies for prosecuting not novel. While it’s impossible to rank trauma, the Unit- perpetratorsVariations under and the Examples available laws. of Image ed States Supreme Court noted that5 “[child] pornography poses an even greater threat to the child victim than Exploitation does sexual abuse or prostitution.” The Court recognized that pornography perpetuates the child’s victimization: Image exploitation comes in distinct, but overlapping, “[b]ecause the child’s actions are reduced6 to a record- forms. The following sections will describe various forms of ing, the pornography may haunt him in future7 years, long image exploitation, including the dynamics of the behavior after the original misdeed took place.” Clinical research and the potential for harm. and anecdotal evidence support this finding. For example, “Sexting” oneEvery victim day wrote of my the life following I live in constantimpact statement: fear that some- 11

one will see my pictures and recognize me and that I 12 will be humiliated all over again. It hurts me to know Sending provocative text or images via cellular telephones someone is looking at them—at me—when I was just a is commonly referred to as “sexting.” Existing studies tend

little girl being abused for the camera. I did not choose to focus on teens and young adults, with several13 studies to be there, but now I am there forever in pictures that attempting to provide an accurate accounting of how many

people are using to do sick things. I want it all erased. engage in sexting; figures range from 1%–33%.14 The discrep-

I want it all stopped. But I am powerless to stop it just ancy between15 the studies can be attributed to any number16 of like I was powerless to stop my uncle.... My life and my factors, including differences in methodology, included age feelings are worse now because the crime has never groups, and definitions of sexting used in each survey. All really stopped and will never really stop.... It’s like I am of the studies may also suffer from underreporting, as each 8 being abused over and over and over again. necessarily relied on young people (often with17 their 18parents’ permission) to self-report their participation in a behavior that they may consider to be embarrassing or risky.

This perpetuity of harm exists with all forms of image ex- Sexting, by definition, includes the sharing of sexual pho- ploitation, including adult victims who have been sexually tographs, and, thus, there is always a danger that sexting assaulted and filmed, or where private images of the victim becomes a means of image exploitation. Sexting is19 often have been obtained through surreptitious, coercive, or abu- precipitated by an emotionally-charged incident and 20 has sive means and then shared with any number of individuals been identified as an emotionally-driven behavior. It is or the Internet. Even where images are consensually creat- most prevalent among teenagers and young adults, a ed and shared, victims can suffer perpetual embarrassment group with underdeveloped impulse 21 control, judgment, and invasion of privacy when those images are distributed and decision-making abilities. Regardless22 of the motive without their knowledge or consent. behind sexting, its potentially permanent consequences can cause grave trauma to victims. Despite the trauma suffered by victims of image exploita- Video Voyeurism tion, no jurisdiction currently has a comprehensive statute aimed at this type of crime; instead, certain types of image exploitation9 are addressed by a patchwork of criminal laws, Hidden cameras, in the form of cellular telephones, nan- many of which are aimed at the misuse of technology to vic- ny cams, webcams, and increasingly creative spy cameras, timize. When technology evolves faster than the law, pros- allow modern day “Peeping Toms” to secretly record vic- ecutors are challenged to hold offenders accountable under tims at their most intimate moments. No longer limited to imperfect or untested laws, while continuing to combat looking through windows without permission, voyeurs can 2 Newsletter Issue #15 • March 2015

23 now record and disseminate images remotely.ad Byinfinitum. captur- tain actions or extort money, sexual favors, or other items ing these private images and sharing them online without of value from the victim. Offenders may legally possess the consent,Recordings offenders of Sexual re-victimize Assaults their subjects images, or they may have gained access to private photos or videos by illegal means, including hacking into the victim’s computer,Prosecuting email, smart Image phones, Exploitation: or social media accounts. When perpetrators of, or witnesses to, a sexual assault Implementing Existing and Identifying record the crime with a still or video camera, they are cre- Emerging Laws ating an image of exploitation. As people with smart phones increasingly record24 every aspect of their lives, the recording of crimes, including sexual assaults, is also becoming Although there are no comprehensive statutes aimed at im- more frequent. When these images are shared or upload- age exploitation crimes, state legislatures continue to pro- ed to the Internet, the victim’s assault becomes part of the pose statutes to address gaps in the law and keep up with public domain and, in some25 cases, is further publicized by technological advancements. As the law continues to evolve, law enforcement and prosecutors can use existing laws to media outlets that publish reports mayon the assault crime with accompanying images. Those who film and/or distrib- hold offenders accountable based on the scope of exploita- ute recordings of a sexual assault be charged with the Stalking,tion, their intent, Cyberstalking, and the harm and inflicted Cyber upon Harassment their victims.32 assault itself, with crimes of image exploitation, and with additional crimes that may apply under different theories of criminal liability, 26as discussed in more detail below. “Revenge Porn” Every jurisdiction has 33enacted a statute prohibiting stalking,34

and many have specific35 statutes aimed at the use of digital and cyber technology. These stalking, cyberstalking, and The phrase “revenge porn” describes a circumstance cyber harassment laws vary in how they legally define the where a photograph or video depicting nudity or sexual ac- prohibited behavior, but the intent is the same – to protect tivity is consensually taken or shared between individuals, victims from harassment. but is then distributed to others or posted online without Although cyberstalking and harassment laws are prevalent, the consent or knowledge of 27the victim. The term “revenge porn” is used because the described scenario often occurs they have not been traditionally used to prosecute individ- in the context of a break-up where the offender intends uals who post and share sexually explicit pictures online. Statutes generally require proof that the offender engaged to embarrass, harass, or harm the victim through28 the dissemination of private, intimate images. The nonconsensual in repeated behavior toward the victim with the intent to distribution can vary in scope, intent, and harm. The of- harass or cause emotional distress. However, particular el- ements of each statue differ in ways that can be important fender may show an image to a few of his29 friends, email an image to a shared group of friends or specified distribution for applying the statute to offenses of image exploitation. list, or post an image to an online forum, social media net30- Revenge porn, sexting, and other forms of image exploita- work, or an online video sharing platform. When the imag- tion may be successfully prosecuted as stalking or harass- es are posted online, the offender will often also “doxx” ment where offenders repeatedly distribute or post images the victim by posting identifying information, including online with the intent to harm or harass the victim. Challeng- the victim’s full name, address, email address, phone num- es can arise in particular circumstances where offenders ber, and/or links to her social media accounts.31 Image Blackmail or “Sexploitation” publically post only one image that is viewed by the victim’s friends, family, and/or colleagues. In such a case, the pros-

ecutors may36 not be able to establish the requisite “course

Offenders with access to incriminating or sexually explic- of conduct” or prove that communication37 was directed to it images may use them to blackmail victims. In exchange the victim. Where the language of the statute is broader to for not revealing the images, offenders may demand cer- include continuous harassment, the prosecutor can argue 3 Newsletter Issue #15 • March 2015 that the statute applies to a single online posting because Depending on the individual, those images are shared with- any image uploaded to the Internet will remain in the cyber in circles of friends and family or they can be shared with sphere for perpetuity, and, therefore, will continually cause38 the public at large. Those who commit crimes are likewise the victim harm. Where a statute defines stalking and ha39- recording their crimes and posting evidence online. This rassing to include communication or conduct “directed at” has led to images of sexual assaults being shared and post- the victim or prohibits “third party” or “indirect” contact, ed online. Where the victim of a sexual assault is further the prosecutor can argue that posting naked or sexually ex- assaulted and exploited by having her assault recorded and plicit images online or sending them to the victim’s friends shared with known and unknown individuals, prosecutors and family satisfies that element of the crime because the are tasked with holding offenders accountable for the full offender’s clear intent is to harass, embarrass, and/or harm extent of their criminal behavior and the immense and theVideo victim Voyeurism through the and dissemination Invasion of of intimate Privacy images. perpetual harm inflicted. 46

Where the statutory construction of a privacy 47or voyeurism statute requires that the victim be “unaware” of the record- The federal government and every state have enacted40 laws ing or require the recording to be surreptitious, prosecutors protecting individual privacy rights in the form of statutes may not be able to apply these statutes to cases where image addressing video voyeurism and invasion of privacy. While exploitation occurs concurrently with a sexual assault and statutory language41 varies, it is generally illegal to surrepti- where the victim is aware that she is being recorded, but does tiously film or photograph a victim who is nude or engaged not give consent. This particular circumstance highlights an in sexual activity. Where a victim is unwittingly recorded important gap in image exploitation law and calls on prosecu48 - undressed or engaged in sexual activity, there is a clear ap- tors to fully examine their state’s statutory scheme to deter- plication of video voyeurism and invasion of privacy statutes. mine if other laws may apply to this type of behavior.

49 Problematic applications of these laws can occur where Prosecutors should seek to adapt voyeurism and50 invasion statutes contain particularly narrow language allowing of- of privacy laws to cases of sexual assault where the acts fenders to escape accountability for their crimes of image committed are the “ultimate invasion of privacy.” For ex- exploitation. For example, in 2002, the Washington42 State ample, New Jersey’s invasion of privacy law contains the Supreme Court overturned the voyeurism conviction of a following[K]nowing language: that he is not licensed or privileged to do so, man who was found to be taking “upskirt” photographs of he photographs, films, videotapes, records, or otherwise women at a local mall because that state’s voyeurism stat- 43 reproduces in any manner, the image of another person ute at the time did not cover intrusions of privacy in pub- whose intimate parts are exposed or who is engaged in lic places. Since that decision, Washington’s legislature an act of sexual penetration or sexual contact, without amended their voyeurism statute, which now proscribes that person’s consent and under circumstances in which voyeurism “under circumstances where the person has a 44 a reasonable person would not expect to be observed.51 reasonable expectation of privacy, whether in a public or private45 place.” Other states have also addressed similar issues with the statutory construction of their voyeurism laws, highlighting the challenges faced when criminal stat- Under this and similar statutes, the prosecutor can argue utes are out-of-date with criminal behavior, especially when that sexual assault, no matter who52 is present and where it that that behavior is facilitated by ever-changing technology. takes place, is a circumstance where the victim has a reasonable expectation of privacy. As technology evolves, so does the manner in which we interact with technology. Advances in hardware and soft- When image exploitation co-occurs with sexual assault, ware precipitate changes in behavior involving tech- law enforcement should also aggressively investigate the nology, in particular, individuals are increasingly using circumstances surrounding the assault to accurately ascer- social media applications to share photographs and videos. tain the exact role that the individual who filmed the assault 4 Newsletter Issue #15 • March 2015

61 played in the assault itself. Often dismissed as simply by- lar telephone, or online storage system and downloaded standers, individuals who film an assault may have orches- photographs without the victim’s approval. In these cir- trated the assault or identified53 and encouraged perpetra- cumstances, offenders can be prosecuted using62 computer tors to engage in the assault – sometimes for the purpose trespass or “hacking” statues that make it illegal to access of creating exploitive images. According to the theory of anotherChild Pornography person’s computer and without Specific permission. Sexting Statutes accomplice liability, where offenders are acting in concert, aiding, or abetting, each participant is held accountable for each other’s actions. Similarly, conspiracy charges are ap- 63 64 The creation, distribution, and possession of sexually ex- plicable where the evidence establishes an explicit or tacit 65 54 plicit images of minors violates federal and state child agreement to commit the assault and, in this example, the pornography statutes. When adult offenders solicit, overt act of filming the assault is completed. Accomplice share, or possess such images, law enforcement should and conspiracy theories of prosecution are strengthened be sure to investigate whether the offender has commit- by the fact that the image the “bystander” created can be 66 ted any other co-occurring crimes, such as sexual battery viewed as a lasting “trophy” of the crime itself. 55 and criminal solicitation of a minor. In these cases, prosecutors can use existing child pornography laws to ensure As well as the invasion of privacy, video voyeurism, ac- that the offender is appropriately held accountable for his complice, and conspiracy crimes discussed above, law en- crimes, including those of image exploitation. 67 forcement and prosecutors should56 also explore charging a “bystander” who films a sexual assault with other crimes, More complicated circumstances arise when minors create, including failing to report a crime. Many of these statutes 57 send, or receive sexually explicit images of other minors, par- often carry felony penalties and can subject the offender to ticularly ones whom they know and with whom they have a Theftsexual registryby Extortion requirements. or Blackmail friendly, flirtatious, or romantic relationship. In these circumstances, legal scholars, news pundits, child advocates, and

legislatures have expressed concern that child pornography68 Theft statutes can also be applied in cases involving image laws could be applied to turn typical teenagers into convicted child pornographers and registered sex offenders. They exploitation58 where the offender unlawfully gained ownership or control of the image and is threatening to expose argue that, unlike child pornography, the minors depicted in the victim. Many states also have specific blackmail stat- self-produced sexual images are not victims of sexual abuse, and, therefore, child pornography statutes should69 not apply utes that59 penalize anyone who threatens to release incriminating or explicit photographs unless certain demands in cases where minors are simply sexting each other as a vo- are met. Punishment and grading under many theft and litional, experimental part of their adolescence. As a result blackmail statutes may depend on the dollar value of the of this argument, twenty states have modified their child por- “thing” demanded from the victim. nography statutes or enacted separate70 “sexting” statutes to Hacking or Computer Trespass address cases involving minors who engage in creating and sharing sexually explicit images. For example, in Nebraska, a juvenile offender can assert an affirmative defense to child Many victims of image exploitation report that they nev- pornography charges if s/he can prove that the image was er shared or disseminated the photographs or videos that “knowingly created and provided by” a minor not younger were used to exploit them. Although some victims may than71 fifteen and that s/he did not distribute the image to oth- simply be mistaken, misremembering, or misplacing their ers and did not coerce the creation or transmission of the im- trust in persons60 or non-secure technology, the fact is that age. Nevada likewise allows for an affirmative defense, and, some images are illegally accessed by known or unknown where the defense is not applicable, the statute prescribes offenders. Specialized law enforcement investigators can misdemeanor-level punishment and72 specifically states that gather computer forensic evidence showing that a “hack- the juvenile offender shall not be considered a sexual offender” unlawfully gained access to a victim’s computer, cellu- er subject to registry requirements. 5 Newsletter Issue #15 • March 2015

When and how the justice system should be involved in Where79 sexting occurs between consenting adults, the cre- minor-to-minor sexting remains unsettled, in part because ation and possession of sexually explicit images is not ille- the motives and consequences of sexting are complicated. gal; however, subsequent unwanted80 distribution or shar-

Sexting is often an emotionally-driven73 behavior by ado- ing of an image may be illegal under other theories of image lescents who possess poor impulse control, judgment, Revengeexploitation, Porn including cyberstalking. and decision-making abilities. This is further evidenced by the fact that minors and young adults often look back at their sexting activity with remorse or embarrassment.74 Currently, at least thirteen states have enacted laws specifi- One study found that 75% of teens acknowledge that 81 cally targeting those who distribute or publish sexually ex- sexting “can have serious negative consequences.” That plicit images without consent. Almost all other states have same study, however, also reported that 66% of teen girls pending82 bills that would either make new law or amend described sexting as “fun and flirtatious,” while at the75 same their current laws to cover this type of image exploita- time acknowledging that most sexually explicit photo- tion. Most enacted and proposed statutes make it illegal graphs were sent after feeling “pressure” from a guy. to intentionally83 publish a sexually explicit image on the Law enforcement must be mindful of the complicated Internet with the intent to cause harm or serious emotion- construct of adolescent behavior and not assume that al distress. However, there84 are other proposed bills that sexting is merely a risky sexually experimental part of would make any nonconsensual publication of a sexually being a teenager. A study of sexting cases that had been explicit photograph illegal. Certain versions of proposed legislation also expand on what constitutes “publishing an referred to police found that76 approximately two-thirds of the cases involved criminal behavior other than consensual image.” For example, instead of narrowing it to publication on the Internet, revenge porn statutes could also prohibit minor-to-minor sexting. These “aggravated circumstanc77 - es” either involved an adult or involved minors engaged in the sharing of photographs in person and via text message, malicious, non-consensual, or abusive behavior. Potential social media, and email. harm from sexting can be immediate (blackmail, extortion) In December 2014, California had its first successful pros- or a result of the permanence of a digital image existing in 85 ecution under its disorderly conduct law that is commonly cyber space. Abigail Judge described the potential for harm referred to as its “revenge porn” law. The language of Cal- andThe exploitation potential foras adigital result images of sexting: to exist in perpetuity… ifornia’sAny person statute whofollows: photographs or records by any as well as the psychological effects of the widespread means the image of the intimate body part or parts distribution of such images, does present the potential of another identifiable person, under circumstanc- for uniquely pernicious harm. Further, although the es where the parties agree or understand that the exchange of images may begin in an experimental or image shall remain private, and the person sub- friendly context, it may abruptly shift to an aggravated sequently distributes the image taken, with the one—especially given the vicissitudes of adolescent rela- intent to cause serious emotional distress, and the tionships, the normative increase in sexual energy during depicted person suffers serious emotional distress this period, and potent neurodevelopmental influences.78 [is guilty of Disorderly Conduct]. 86

Prosecutors must be vigilant and thorough when in- It should be noted that California has recently approved an vestigating, charging, and resolving cases involving mi- 87 amendment to include the unlawful distribution of “selfies” nor-to-minor sexting. Many factors must be considered, shared with the offender. This amendment and the num- including whether the behavior was in fact consensual or ber of similar bills pending approval signify the evolving a product of coercive behavior, whether any images were nature of image exploitation law. distributed to others or uploaded to the Internet, and the images’ existing and potential harm. 6 Newsletter Issue #15 • March 2015 Prosecuting Image Exploitation: 92 General Strategies dia that can establish that the offender captured, possessed,

and distributed93 the images used to exploit the victim. For example, many digital photographs and videos will contain Crimes of image exploitation have several common attri- metadata that can link the image to a particular device, butes: they frequently occur within an intimate partner re- online account, or other identifying information. Investiga- lationship, involve digital evidence, and result in extensive, tors should also look for evidence of ownership, custody, but often non-monetary harm. The following paragraphs and control to provide circumstantial evidence placing the will discuss general strategies that can be employed in any offenderProving “behind” Harm whichever digital device was used. Intimateprosecution Partner involving Violenceimage exploitation.

Many statutes that can be used to prosecute image exploita- Image exploitation is often part of a larger, ongoing pattern tion require a proof of harm. In certain cases, typically of abuse and stalking. When appropriate, multiple acts en- those involving theft, blackmail, and hacking, an offender compassing the entirety of an offender’s criminal activity 88 may only be exposed to misdemeanor charges (and pun- should be charged substantively or introduced as prior bad ishments) where the victim’s damages cannot be quanti- act evidence. Pretrial protection orders should be sought fied to a monetary amount. In those cases, the prosecutor with specific language prohibiting online communication, 94 should ensure that the victim provides proof of any loss of use of the victim’s image, indirect contact, and other pro- employment, incurred medical expenses, and other mon- hibitions particular to the facts and offender’s pattern of etary damages. In all cases of image exploitation, it will be image exploitation. Domestic violence and stalking statutes necessary to inform the court or jury the full extent of the may also apply, as image exploitation is commonly used in harm inflicted on the victim by the offender’s acts of image the context of an abusive intimate partner relationship (or 89 exploitation. Prosecutors can use victim impact statements, former relationship). Harassment and terroristic threats 95 as well as testimony from the victim, her family and friends, statutes may also apply to the offender’s ongoing criminal and, with the explicit permission of the victim, her coun- acts. Victims should be advised that they can apply for civil selor/therapist to show the serious and perpetual damage protective orders – allowed in every state – for victims of that the offender caused the victim, her relationships, pro- domestic violence, sexual assault, and/or intimate partner fessional life, and personal autonomy. stalking, which universally include language90 that prohibits Conclusion contact in person, by telephone, by mail, through written notes, and via electronic communication. Prosecutors can 96 also require that a defendant agree to an indefinite civil or- Cases involving image exploitation are frequently min- der of protection being entered as part of plea negotiations. imized as “scandals,” but they are serious legal and moral Digital Evidence violations. The nonconsensual creation, possession, or distribution of images depicting a victim nude, semi-nude, engaged in consensual sexual activity, or being sexually Law enforcement and prosecutors must be familiar with assaulted can cause infinite harm to a victim and his/her basic digital evidence to successfully prosecute most cases family. Existing criminal laws, while imperfect, can and do involving image exploitation. Offenders use cellular tele- provide avenues for perpetrator accountability. Prosecu- phones, digital tablets, the Internet,91 and social media to tors handling these cases can use offender-focused strate- perpetrate their crimes. Evidence used at trial can be in the gies to counter the victim-blaming that far too often may form of testimony, screenshots, forensic examinations, or result in investigative and trial-related challenges, as well a combination thereof. Often, the most valuable evidence is as additional devastation for a victim. uncovered using cyber investigative techniques. Cases of image exploitation have unfortunately included Forensic investigators can preserve and examine evidence dozens of teens and young adults who have committed sui- contained on laptops, smart phones, and other digital me- cide as a result of having sexually explicit material posted 7 Newsletter Issue #15 • March 2015 ENDNOTES online or shared amongst their peer97 group: a fifteen year old girl who posted a YouTube video detailing her online 1 The term “image exploitation” is used in this article to refer to acts involving the nonconsensual production, possession, or distribution of abuse before she committed suicide, and a Rutgers college images depicting the victim as nude, semi-nude, engaged in consensual student who committed suicide after his roommate surrep- sexual activity, or being sexually assaulted. titiously filmed and distributed98 video of the victim kissing 2 Jane Anderson is an Attorney Advisor with AEquitas: The Prosecutors’ Resource on Violence Against Women. Supriya Prasad is a third-year law another man are just two examples of the tragic conse- student at Georgetown University Law Center. The authors would like to quences of image exploitation. As prosecutors continue thank AEquitas colleagues Viktoria Kristiansson, Attorney Advisor; Char- lene Whitman-Barr, Associate Attorney Advisor; and Jennifer G. Long, to develop strategies to support victims and hold offenders Director, of AEquitas,Doxxing for their victim: significant “This contributions isn’t about porn, to this this article. accountable, the horrific impact of these crimes should in- is about humiliation,” 3 Tracy Clark-Flory, form charging decisions, plea negotiations, trial practices, Salon,see (Mar. also 1, 2014 ), http://www.salon.Someone Stole Naked and arguments regarding appropriate sentencing. com/2014/03/02/doxxing_victim_this_isn%E2%80%99t_about_porn_Pictures of Me. This is What I Did About It this_is_about_humiliation/; Emma Holten, , The Guardian (Jan. 21, 2015), http://www.theguardian.com/commentisfree/video/2015/jan/21/ naked-pictures-this-is-what-i-did-revenge-porn-emma-holten-video. e.g. 4 Although this STRATEGIES focuses on digital and cyber means of image exploitation, “old fashioned” image exploitation also exists; , offenders may make flyers with the victim’s image and personal information, and then post the flyers throughout the victim’s community. 5 NewId. York v. Ferber, 458 U.S. 747, 759 n.10 (1982). 6 Id.; NMEC Chapter “Victims of Child Pornography” citing numerous studies. 7

8 Paroline v. United States, 134Stalking S. Ct. Technology1710 (2014). Outpaces State Laws 9 Stalking Resource Center, , 3(2) Stalking Resource Center Newsletter 3-4 (Summer 2003), http://www.victimsofcrime.org/docs/src/source-summer-2003.pdf?s- fvrsn=0. 10See In this article, violence against women crimes includeIntegrating sexual a violence,Trauma-Informed intimate Responsepartner violence, in Violence stalking, Against and Women human and trafficking. Human TraffickingViktoria Prosecutions Kristiansson and Charlene Whitman-Barr,available at

, 13 Strategies (2015), www.aequitasresource.org/library.cfm. 11 Sexting behavior is no longer limited to cell phones, but now includes exchanging photographssee, e.g., via applications such as Instagram, Snapchat, and Facebook Messenger. Mediums in which data can be shared continue to emerge; AirDrop, a feature of the latest Use AppleAirdrop Operating to Wirelessly System Share that Content allows users to “share photos, videos, websites, locations, and more with people nearby with an Apple device.” , Apple, http://support.apple.com/ en-us/HT204144 (last visited Jan. 21, 2015). 12 As this article’s focus is on image exploitation, the authors will use the term “sexting” to refer to any sending or receiving of sexually suggestive or explicit images via a cell phone. It should also be noted that some use a more restrictive definition where “sexting” only refers to consensual cell phone communication between minors; for example, see The Nation- al Center for Missing and Exploited Children, Policy Statement on Sexting (Sept. 2009), http://esd113.org/cms/lib3/WA01001093/ Centricity/Domain/22/policystatementonsexting-ncmec.pdf (defining sexting as “youth writing sexually explicit messages, taking sexually“Sexting” ex- plicitAmong photos U.S. Adolescents: of themselves Psychological or others in and their Legal peerPerspectives group, and transmitting those photos and/or messages to their peers”); Abigail M. Judge, , 20 Harv. Rev. Psychiatry 86, 92 (2012) (defining sexting as “the exchange of sexually explicit images between adolescents via cell phone”).

8 Newsletter Issue #15 • March 2015 See, e.g.,

13 The National Campaign to Preventavailable Teen at and Un- 25 Media should redact any identifying images of victims of sexual planned Pregnancy, CosmoGirl.com, Sex andhereinafter Tech: Results of a assault; however,e.g. the publicity canTwo lead Years to Ago,the discovery a Woman ofwas non-redact Sexually - Survey of Teens and Young Adults (2008), http://then- edAssaulted versions While of the Sleeping recording on the which Subway may andbe posted and a Videoto websites Went Viral.such asNow ationalcampaign.org/resource/sex-and-tech [ Sex and Tech] YouTube.com;She’s Speaking OutJill Filipovic, (online survey of teens [13-19-year-olds]Teens and Sexting: and young How adultsand Why [20-26-year- Minor olds]Teens findingAre Sending that 22% Sexually of teen Suggestive girls and Nude 36% or of Nearly young Nude women Images engaged Via , Cosmopolitan (Dec. 24, 2014), http://www.cosmo- inText sexting); Messaging Amanda Lenhart, politan.com/politics/news/a34627/subway-sexual-assault/ .

, Pew Research Internet Project (Dec. 15, 2009), 26 While the term “revenge porn” appears to be solidified as the http:www.pewinternet.org/Reports/2009/Teens-and-Sexting.aspx accepted term in the public’s perception, media, and in recent legisla- (finding 4% of 12-17-year-olds had sent a sext and 15% had received a tive measures, the term does not appropriately identify non-offending sext, but also finding that sexting increasedPrevalence with age, andas 8% Characteristics of 17-year- parties as victims of an incredibly harmful type of sexual exploitation. oldsof Youth had Sexting:sent a sext, a National and 30% Study of 17-year-olds had received a ),sext);available KJ Rather, it sometimes gives the impression that victims may have been Mitchell,at D Finkelhor, LM Jones & J Wolak, voluntarily engaged in pornography and therefore are somehow cul- , 129 Pediatrics 1-8 (2012 pable in their own victimization. However, due to general acceptance, http://pediatrics.aappublications.org/content/129/1/13 (finding including the titling of recent legislation, the authors will continue to that less than 1% of surveyed 10-17 year olds created and sexted im- use the term “revenge porn” throughout this articleSee, e.g., while maintaining ages that would be considered child pornography); Associated Press, their position that the term inadequately addresses the nonconsensual MTV, A Thin Line: Digital Abuse Study (2009), http://www.athinline. and harmful nature of the activity described. Md. Code Ann., org/MTV-AP_Digital_Abuse_Study_Executive_Summary.pdf (finding that Crim. Law § 3-809 (West 2014). one-third of 14-24-year-olds engaged in some form of sexting). 27 While revenge has been the most readily identified motive of 14 For example, variations could be due to the fact that some informa- offenders engaged in this behavior, it need not be the only motivator. tion was collected via online surveys and others via land-line telephone Additionally, offenders and victims may only briefly or casually know interviews after receiving consent from the teen’s parent. each other prior to the exploitation. E.g., 15 The age rangePrevalence included in and each characteristics survey differs of considerably, youth sexting: which a na- 28 “The victims of these acts have lost jobs, been forced to change istional arguably study a significant reason why the resultsavailable are at so disparate. schools, change their names, and have been subjected to real-life KJ Mitchell, et al., stalking and harassmentAdventures because in Victimof the actionsBlaming: of Revenge those who Porn posted Edition . 129 Pediatrics 1-8 (2012), contra http://pediatrics.supra and distributed their images. Some victims have committed suicide.” aappublications.org/content/129/1/13 (includes information from Mary Anne Franks, , surveyed individuals as young as age 10), Sex and Tech, Concurring Opinions (Feb. 1, 2013), http://www.concurringo- note 13 (including statistics from individuals as old as age 26). pinions.com/archives/2013/02/adventures-in-victim-blaming-re- supra venge-porn-edition.html. 16 Sexting was defined broadly and narrowly, depending on the survey. Sex and Tech, supra note 13 29 There has also been much legal debate Unwantedabout holding Exposure: websites Civil lia and- bleCriminal for the Liability harm they for Revenge allow and Porn from Hosts which and they Posters profit. For a discussion 17 Mitchell, note 15 (finding that 21% of those engaged in sex- on liability for websites, see Susan Lichter, ting felt “very or extremelysupra upset, embarrassed, or afraid as a result”). , Joltdigest (May 28 2013), http://jolt.law.harvard.edu/digest/privacy/unwanted-expo- 18 Sex and Tech, note 13 (finding that 75% of teens and 71% of sure-civil-and-criminal-liability-for-revenge-porn-hosts-and-posters. young adults say sending sexually suggestive content “can have serious negative consequences”).supra 30 In this context, the term “doxxing” refersWhat to posting doxxing personal, is and why identi it - See, e.g., supra fyingmatters information of the victim alongside the exploitive image. For more 19 Judge note 12. information about the term “doxxing,” see 20 supra note 13. , The Economist (Mar. 10, 2014), http://www.economist.com/ blogs/economist-explains/2014/03/economist-explains-9.see 21 JudgeId. note 12. 31 The FBI used this term to describe offender behavior; Press 22 Release of U.S. Attorney’s Office, Kern County Man Charged with Sextor- Re-thinking Privacy: Peeping Toms, Video tion of Minors Using Social Media (Mar. 6, 2014), http://www.fbi.gov/ 23Voyeurs, Many and states the haveFailure passed of Criminal criminal Law laws to Recognizecriminalizing a Reasonable this type of sacramento/press-releases/2014/kern-county-man-charged-with-sex- behavior.Expectation Lance of Privacy E. Rothenberg, in the Public Space tortion-of-minors-using-social-media. see, e.g. , 49 Am. U. L. Rev. 1127 (2000); 32 HarassmentElonis laws are currently being tested before the United States , Fla. Stat. Ann. § 810.14 (West 2014); Ind. Code Ann. § 35-45- Supreme Court in Elonis v. United States, 134 S. Ct. 2819, 189 L. Ed. 2d 4-5 (2014); Miss. Code Ann. § 97-29-61 (2014); Ohio Rev. Code Ann. § 784 (2014). was convicted after making repeated threatening 2907.08See e.g. (2009); Wash. Rev.Police: Code 5 ChargedAnn. § 9A.44.115 in Recorded (2014). Sexual Assault comments on Facebook. The comments were directed at his ex-girl- on Boy friend, who had an order of protection. While the case does not involve 24 , , Chris Smith, any images, the decision will likely shape future prosecutions involving , USA Today (Oct. 16, 2014), http://www.usatoday.com/story/Phoenix Man Accused any Seeonline stalking or harassment. news/nation/2014/10/16/police-teen-seriously-injured-in-videoof Recording Sexual Assault - taped-sexual-assault/17386597/; Tyler Fingert, 33 AEquitas: The Prosecutors’see also ResourceThe Use on of TechnologyViolence Against to Stalk , AZ Central (Sept. 4, 2014), http:// Women, Statutory Compilation on Stalking and Related Offenses www.azcentral.com/story/news/local/phoenix/2014/09/04/, Police: Round Rock Man Recorded Sex Assault of (2010)(available upon request); , phoenix-man-recorded-sexual-assault-charges-abrk/15031459/;Teen Stalking Resource Center, http://www.victimsofcrime.org/our-pro- Associated Press grams/stalking-resource-center/stalking-information/the-use-of-tech- , Kvue.com (Dec. 9, 2014), http://www.kvue.com/story/news/ nology-to-stalk#compSee id., e.g., (last visited Dec. 16, 2014). crime/2014/12/09/police-texas-man-recorded-sex-assault-of- teen/20133141/. 34 Cyberstalking statutes. 9 Newsletter Issue #15 • March 2015 See id., e.g. rape thanks to pictures one of them took during attack

35 See , Cyber Harassment statutes. , Washington Post (Jan. 28, 2015), http://www.washingtonpost.com/news/morning-mix/ 36 People v. Barber, 42 Misc. 3d 1225(A), 992 N.Y.S.2d 159 (N.Y. Crim. wp/2015/01/28/two-former-vanderbilt-football-players-convicted-of- Ct. 2014) (concluding “that defendant’s conduct, while reprehensible, rape-thanks-to-pictures-one-of-them-took-of-it/. doesSee, not e.g., violate any of the criminal statutes under which he is charged”). Homecoming rape: When do by- See, e.g., 54standers For a become discussion accomplices? on accomplice liability where “bystanders” film a 37 Ind. Code Ann. § 35-45-10-1 (West 2014). sexual assault, see Michael B. Farrell, 38 See, e.g. Neb. Rev. Stat. § 28‐311.02 (2010). see also Accomplice, The Christian Liability inScience Richmond Monitor Rape Case?(Oct. 30, 2009), http://www.csmonitor.com/USA/Justice/2009/1030/p02s10-us - 39 , Del. Code Ann. tit. 11, § 1312 (2011). ju.html; Kdansky, , Stanford Law School (Oct. 29, 2009), http://blogs.law.stanford.edu/ 40 For a survey of video voyeurism statutes, see Nat’l Center for scjc/2009/10/29/accomplice-liability-in-richmond-rape-case/. Prosecution of Child Abuse, Nat’l District Attorneys Ass’n, NDAA Voyeurism Compilation (July 2010), http://www.ndaa.org/pdf/Voyeur- 55 Prosecutors need to familiarize themselves with their state laws to en- ism%202010.pdf.Id. sure that the circumstances fit the statutory language. Aside from the chal- lengese.g. detailed in this article, a further challenge may exist in jurisdictions 41 that require that the filming be done for the purpose of sexual gratification ( , Colo. Rev. Stat. Ann. § 18-3-404 (2013) requires that the offender 42 “Upskirting” is where offenders secretly position a camera to be able observed the victim “for the purpose of the observer’s own sexual gratifi- to take photographs underneath women’s skirts as they sit on subway cation”). Prosecutors will need to make appropriate arguments that while cars, ride escalators,, and otherwise take part in public life. the offender’s main purpose may be humiliation or degradation of the 43 State v. Glas 147 Wash. 2d 410, 54 P.3d 147 (2002). victim, the offender had sexually prurient motives as well. 44 Wash.See, e.g., Rev. Code § 9A.44.115States – and victims – grapple with ‘up- 56 In Ohio, “no person, knowing that a felony has been or is being skirt’ laws against voyeurism committed, shall knowingly fail to report such information to law en- 45 Ray Sanchez, forcement authorities.” Ohio Rev. Code Ann. § 2921.22 (2014). In Texas, Texas court throws out ‘upskirt’, CNN photo (Mar. law, 7, 2014), http://edition.cnn. one can be held criminally liable if s/he fails toSee report also a felony which Jus- com/2014/03/06/us/upskirt-photography/index.html; Cindy George, atifications reasonable for personState Bystander would believe Intervention may result Statutes: in death Why or Crime great Witnesses bodily Houston Chronicle (Sept. harm.Should Tex. Be Required Penal Code to Call Ann. for § Help 38.171 (2003). Jennifer Bagby, 17, 2014), http://www.houstonchronicle.com/news/article/State-Upskirt photos don’t appeals-court-rules-upskirt-law-5763225.php?cmpid=twitter-premiviolate a woman’s privacy, rules D.C. Judge - Id. , 33 Ind. L. Rev. 571, 574 (2000). um&t=53c893b5408b7034ef; Alanna Vagianos, , HuffPost Women (Oct. 10, 57 Louisiana and North Carolina both have provisions requiring video 2014), http://www.huffingtonpost.com/2014/10/10/upskirt-photos-le- voyeurs to register as sex offenders where the victim is an adult. Other See, e.g., gal-dc_n_5966406.html.See, e.g. states only require registry where the victim is a minor. 46 , Ariz. Rev. Stat. § 13-1424 (2008) (stating, “It is unlawful to 58 Or. Rev. Stat. Ann. § 164.075 (2014); Neb. Rev. St. § 28-513 See, e.g., knowingly invade the privacy of another person without the knowledge (2014); Pa. Cons. Stat. Ann. 18 § 3923 (2014). of theSee, other e.g., person for the purpose of sexual stimulation”). 59 Ky. Rev. Stat. Ann. § 21-5428 (2014); 21 Okl. St. Ann. § 1488 See, e.g 4chan: The ‘Shock Post’ Site that Host- 47 Ind. Code Ann. § 35-45-4-5 (2014) (defining “Peep” as “any (2014); Conn. Gen. Stat. Ann. § 53a-192 (2014). ed the Private Jennifer Lawrence Photos looking of a clandestine, surreptitious, prying, or secretive nature”). 60 ., Terrence McCoy, 48 In particular, crimesSee, involving e.g. the use of a computer, cellular tele- , Washington Post (Sept. phone, or other types of electronic communication may apply in par- 2, 2014), http://www.washingtonpost.com/news/morning-mix/ ticular circumstances. , Fla. Stat. § 934.215 (2001) (Florida’s wp/2014/09/02/the-shadowy-world-of-4chan-the-shock-post-site-that- E.g., Unlawful Use of a Two-way Communications Device). hosted-the-private-jennifer-lawrence-photos/. Dharun Ravi Found Guilty in Rutgers See 49Webcam New SpyingJersey’s Trial invasion of privacy law was successfully used to convict 61 “The Cloud” or Apple’s iCloud. Dharun Ravi. Megan DeMarco, 62 Arkansas Code § 5-41-104 (West 2014) ((a) A person commits , NJ.Com (Mar. 16, 2012), http://www.nj.com/news/ computer trespass if the person intentionally and without authorization index.ssf/2012/03/dharun_ravi_found_guilty_in_ru.html.Rape – The Ultimate Invasion of Privacy accesses, alters, deletes, damages, destroys, or disrupts any computer, 50 Cottwell, , 43 FBI L. Enforce- computer system, computer network, computer program, or data). ment Bull. 2 (1974). 63 Child pornography laws differ from jurisdiction to jurisdiction; de- 51 N.J. Stat. Ann. 2C:14-9(b) (West 2014). pending on the statutory language, sexted images may be child pornog- Supra raphy if they depictSee sexual conduct, simulated sexual conduct, or erotic 52 Nearly all voyeurism and invasion of privacy laws contain similar nudity. They may not be considered child pornography if they merely language. , note 40. depict nudity. Nat’l Center for Prosecution of Child Abuse, Nat’l District Attorney’s Assoc’n, Child Pornography Statutes (2010), 53 The recent aggravated rape conviction of Vanderbilt student Bran- http://www.ndaa.org/pdf/Child%20Pornography%20Statutory%20 don Vandenberg illustrates the application of accomplice liability to per- Compilation%206-2010.pdf. petrators who facilitate sexual assaults regardless of whether they carry See Child Pornography out the assault themselves. In this case, evidence showed the defendant 64 Different states define “minor” as being under the age of 18, 17, or 16. Brandon Vandenburg carried the unconscious victim into the room where Thomson Reuters, , 0030 Surveys 5 (Oct. 2013), she was sexually assaulted by three of his friends while he provided them http://www.olemiss.edu/depts/ncjrl/pdf/I%20C%20A%20C/2013%20 condoms and offered them verbal encouragement. Further, a video re- -%20April%2018-19/APPENDIX%20A%20-%2050%20STATE%20 cording of the assault showed Vandenburg saying that he could not have STATUTORY%20SURVEYS%20CRIMINAL%20LAWS%20CRIMES%20 sex with the women becauseTwo former he was Vanderbilt too high football on cocaine. players Vandenburg convicted of Child%20Pornography.pdf.Id. was convicted of aggravated rape, although he did not carry out the rape himself. Justin Moyer, 65 10 Newsletter Issue #15 • March 2015

State 66 This is by no means an exhaustive list of possible co-existing crimes. scientificLaws on Obscenity, value, and Child 3) depicts Pornography or describes and Harassment nudity, sex, or excretion in a Law enforcement and prosecutors should research applicable state sex patently offensive way. For a survey of existing obscenity laws, see crimes, crimes against children, and computer-related crimes to ensure , LorenAvedon. that adult offenders are held fully accountable for their criminal conduct. comSee, http://www.lorenavedon.com/laws.htmsupra see also (lastDomestic visited Violence Dec. 19, in 2014). the Digital Age: Towards the Creation of a Comprehensive Cyberstalking Stat- 67 This discussion also applies to peers of minors who have turned 18 80ute discussion ; Aily Shimizu, years old, but are still in high school and are otherwise appropriately interactingSee, e.g., with minors of theirSelf-Produced peer-group. Child Pornography: The Ap- , 28 Berkley J. Gender L. & Just. 116 (2013) (citing Violence Against propriate Societal Response to Self-Sexual Exploitation, Women Office, Office of Justice Programs, Stalking and Domestic 68L Mary Graw Leary,Are ‘Sext’ Messages a Teenage Felony or Folly? Violence Report to Congress 1 (May 2001), https://www.ncjrs.gov/ 15 Va. J. Soc. Pol’y & pdffiles1/ojp/186157.pdf).State Revenge Porn Legislation . 1 (2007); Nathan Koppel, , TheStates Wall Struggle Street with Journal Minors’ (Aug. Sexting 25, 2010), http://www.wsj.com/articles/ 81 , National Conference on State Leg- SB10001424052748703447004575449423091552284; Jan Hoffman, islatures, http://www.ncsl.org/research/telecommunications-and-in- The failure of sexting criminalization:, N.Y. Times a plea (Mar. for 26, the 2011), exercise http:// of pros- formation-technology/state-revenge-porn-legislation.aspx#2014 (last www.nytimes.com/2011/03/27/us/27sextinglaw.html?_r=2&;ecutorial restraint Robert H. visitedId. Dec. 19, 2014). Wood, See, e.g., , 16 Mich. Telecomm. & Tech. L. Rev. 151 (2009); Dena 82 T. Sacco, Rebecca Argudin, James Maguire, Kelly Tallon & Cyberlaw 83 See, e.g., Md. Code Ann., Crim. Law § 3-809 (West 2014). Clinic, Theavailable Berkman at Center for Internet and Society at Harvard University, Sexting: Youth Practices and Legal Implications (June 84 Ariz. Rev.‘Revenge Stat. Ann Porn’. § 13-1425 Law Sees (2014). First Conviction in 22, 2010), http://cyber.law.harvard.edu/publications/2010/ California Sexting_Youth_Practices_Legal_Implications.Sexual Frustrations: Why the Law Needs to Catch 85 Lydia O’Connor, Up to Teenagers’ Texts, , Huffington Post (Dec. 2, 2014), http://www.huffing- 69 Meghaan C. McElroy, tonpost.com/2014/12/02/revenge-porn-california-first-convic- 48(2) The Houston Lawyer 10, 11-12 (Nov./Dec. tion_n_6258158.html. 2010). 2012 Sexting Legislation 86 Cal. Penal Code § 647(j)(4)(A) (West 2014). 70 For a survey of sexting laws, see , National Conference of State Legislatures, http://www.ncsl.org/research/tele- 87 “Selfies” refers to self-portrait photographs, and, in this context,Bill Adds it communications-and-information-technology/sexting-legislation-2012. refers‘Selfies’ to to photographs California Revenge taken by Porn the Ban victim and consensually shared with aspx (last visited Dec. 17, 2014). the offender prior to the unlawful disclosure. Associated Press, , Washington Times (May 27, 71 Neb. Rev. Stat. § 28-813.01 (West 2014) ((3) It shall be an affirmative 2014), http://www.washingtontimes.com/news/2014/may/27/bill- defense to a charge made pursuant to this [child pornography] section adds-selfies-to-california-revenge-porn-ban/. Pros- that: (a) The visual depiction portrays no person other than the defen- ecuting Intimate Partner Sexual Assault dant; or (b)(i) The defendant was less than nineteen years of age; (ii) 88 Webinar Recording by Christopher Mallios & John Wilkinson, the visual depiction of sexually explicit conduct portrays a child who is , http://www.aequitasresource. See, e.g., fifteen years of age or older; (iii) the visual depiction was knowingly and org/trainingDetail.cfm?id=113 (recorded on Oct. 29, 2014). voluntarily generated by the child depicted therein; (iv) the visual de- 89 18 Pa. Cons. Stat. § 2706 (in part) “A person commits the piction was knowingly and voluntarily provided by the child depicted in crime of terroristic threats if the person communicates, either directly the visual depiction; (v) the visual depiction contains only one child; (vi) or indirectly, a threat to (1) commit any crime of violence with intent to the defendant has not provided or made available the visual depiction to terrorize another.” another person except the child depicted who originally sent the visual depiction to the defendant; and (vii) the defendant did not coerce the 90 The broad language in these orders will likely cover any type of child in the visual depiction to either create or send the visual depiction). image exploitation. Additionally, prosecutors should insist that offenders complete a Batterers Intervention Program (BIP) as part of any plea 72 Nev. Rev.supra Stat. Ann. § 200.737 (West 2011). or sentence. American Bar Association Commission on Domestic 73 Judge, notesupra 12. Violence, Domestic Violence Civil Protection Orders; see, (CPO)e.g., by State (2007), http://www.americanbar.org/content/dam/aba/migrated/dom- 74 Id.Sex and Tech, note 13. viol/docs/DV_CPO_Chart_8_2007.authcheckdam.pdf Court of Common Pleas of Ohio, Form 10.01-H: Domestic Violence Civil Protection 75 Prosecutors and investigators should be mindful that any “pres- Order (CPO) Ex Parte (Mar. 2014), http://www.supremecourt.ohio.gov/ sure” that a victim describes as precipitating the taking and sending of JCS/domesticViolence/protection_forms/DVForms/10.01H.pdf. sexually explicit photographs is likely a non-explicit form of coercion being used by the offender to elicit the image from the Howvictim. Often Are 91 In this context, a screenshot is an image that captures the display on Teens Arrested for Sexting? Data From a National Sample of Police Cases a digital device. In most cases, a screenshot can be admitted into evidence 76 Janis Wolak, David Finkelhor &available Kimberly at Mitchell, just as a photograph would be, as long as someone with knowledge can , testify that it is a fair and accurate depiction of the screen display. 129(1) PEDIATRICS 4-12 (2012), http://pediatrics.aappublications.org/content/129/1/4.Id. 92 While not the focus of this article,Following information the Digital about Breadcrumbs:digital evidence supra andUtilizing cyber Technology investigations in Sex can Trafficking be found Prosecutions,in AEquitas’ webinar archive. We- 77 binar Recording by Jane Anderson, 78 Judge, note 12. http://www.aequitasresource.org/trainingDetail.cfm?id=115 (recorded Dec. 12, 2014). 79 Depending on the content of the image, obscenity laws may make even the consensual sharing of explicit materials illegal. Obscenity is typ- 93 Metadata is information attached to a digital item that contains addi- ically defined as material which, to the average person, applying contem- tional information about that item. For more information about metadata porary community standards, and taken as a whole: 1) predominantly see, Nat’l Information Standards Organization, Understanding appeals to prurient interests, 2) lacks serious literary, artistic, political, or Metadata (2004), http://www.niso.org/publications/press/Understand- ingMetadata.pdf. 11 Newsletter Issue #15 • March 2015

94 Medical expenses can also include psychiatric, psychological, and therapeutic services. 95 This should only occur in very limited circumstancesSee where, for example,Walking the victim A Tightrope: has waived Balancing confidentiality Victim and/orPrivacy the and victim Offender is completely Accountabili - unablety in Domestic to testify Violence during and this Sexual phase Assaultand there Prosecutions has been a Parts collective I & II agreement and understanding thatavailable the counselor’s at testimony at this stage is so important that it outweighs associated privacy risks. Viktoria Kristiansson, See, e.g., Both Huntress and Prey , 9-10 STRATEGIES (May 2013), www.aequitasresource.org/library.cfm. 96 Sam Kashner, , Vanity Fair (Nov. 2014), http://www.vanityfair.com/hollywood/2014/10/jennifer-lawrence-pho- to-hacking-privacy.Man Charged In Netherlands In Amanda Todd Suicide Case 97 , BBC News Europe (Apr. 18, 2014), http://www.bbc.co.uk/news/world-europe-27076991. Former Rutgers Student Convicted of Hate Crime 98 Geoff Mulvihill, , The Boston Globe (Mar. 16, 2012), http://www.bostonglobe.com/news/nation/2012/03/16/former-rutgers-student-convicted-webcam-case/fGC0K8RasNC84P3nH7Lb4H/story.html.

This article was supported by Grant No. 2009-TA-AX-K024©2015 awarded AEquitas. by the U.S. All Department Rights Reserved. of Justice, Office on Violence Against Women (OVW). The opinions, findings, conclusions, and recommendations expressed in this document are those of the author(s) and do not necessarily reflect the views of OVW.

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