The Queer Limits of Revenge Porn Laws

Abstract

The highly successful movement to combat the nonconsensual distribution of sexual imagery—commonly known as “revenge porn”—sends a powerful message that sexual expression through digital technology is an illegitimate basis for stigma, abuse, or the loss of employment. Although feminist advocates spearheaded these laws to counter the overwhelmingly gendered dynamics of revenge porn, these laws also send a powerful message about sexual norms and sexual privacy that would appear to benefit queer communities especially. Nonetheless, as enacted by state legislatures and interpreted by state courts, revenge porn laws are significantly limited in ways that undermine their practical and symbolic benefits for queer people and other sexual minorities. In virtually all forty-eight U.S. states that have criminalized revenge porn, the enacted statutes draw a line between “private” or “intimate” images that are protected against unauthorized distribution and “public” or “commercial” images that 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 Article 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.