Blac Chyna's lawyer calls release of revenge porn video a crime — but what exactly is it?

Jennifer Gerson Uffalussy
Contributing Writer
Yahoo Lifestyle
Blac Chyna has been the apparent victim of revenge porn twice. (Photo: Splash News)
Blac Chyna has been the apparent victim of revenge porn twice. (Photo: Splash News)

On Feb. 19, Blac Chyna once again found her name in the news as the victim of an alleged act of “revenge porn” after a sex tape involving her was leaked online. Chyna’s ex-boyfriend Mechie has confirmed to TMZ that he is the person with her on the tape and that he filmed the act, but claims he did not leak it.

In July 2017, Chyna was the victim of another act of alleged revenge porn after ex-boyfriend Rob Kardashian posted a graphic photo of Chyna’s genitals on Instagram. At that time, Kardashian also posted a video, again without Chyna’s consent, of Chyna and Mechie kissing in bed together.

In response to the leak of the most recent tape of Chyna and Mechie, Chyna’s attorney Lisa Bloom took to Twitter to emphasize that the release of the tape is unquestionably an act of revenge porn — something that is illegal in the state of California.


But what exactly is revenge porn — and what legal recourse is available if it happens to you?

The answer to both of those questions is: It depends.

Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida, explains to Yahoo Lifestyle that though the term “revenge porn” is broadly used, it is one that lacks a precise legal definition unless a state has adopted a statute that explicitly criminalizes the act.

“Revenge porn can mean a lot of different things to a lot of different people,” Calvert says.

In California, one of the states that has made the act a criminal misdemeanor crime, the law defines revenge porn as disseminating an image depicting intimate body parts or a sexual act that was intended to be private, knowing that distribution of the image will cause serious emotional distress, and the person depicted in the image suffers distress.

But not every state is California, and to date, there is no federal law on the books defining and criminalizing revenge porn. Which means that for now, Calvert says, most victims of revenge porn are left “playing an endless game of whack-a-mole because once an image is out there online, the horse is out of the barn door and it’s very difficult to remedy that.”

Calvert notes that for many victims, the only immediate legal recourse might be “through multiple civil suits” focused on the damages of intentionally inflicting emotional distress on the victim through an act of revenge porn. But those kinds of suits are far from a perfect answer for victims, as “there is a fine line between freedom of speech and freedom of expression and the causing of severe emotional harm and trauma to the victim.”

Furthermore, Calvert says, that while he himself is not expressing sympathy for those who traffic in acts of revenge porn, the reality is that the argument many defendants’ counsels successfully make in these cases is, “you knew he took the picture and he never actually promises not to post it.”

“The defendant, the poster of these images, is often judgment-proof,” Calvert explains. “They often don’t have a lot of money. They’re often a spurned boyfriend who gets mad that his girlfriend broke up with him and blasts out these pictures. But that doesn’t mean he has a lot of money that she can sue him for. And once those images are out there, they’re out there.”

That means that civil actions can often feel somewhat hollow for many victims. But in the midst of an evolving legislative landscape where revenge porn isn’t necessarily criminal in all places, it’s many people’s best — and only — form of legal recourse.

Daliah Saper is a Chicago-based attorney who has represented a number of plaintiffs in civil suits in which her clients have been the victims of revenge porn. “If you called me two years ago asking about revenge porn, this was a foreign concept for most people and certainly wasn’t a term in everyone’s vernacular,” Saper tells Yahoo Lifestyle. “Now 38 states and the District of Columbia have statues making revenge porn some sort of a crime. The misunderstanding now is what should fall under those statutes and how we define what revenge porn is.”

Saper says part of the evolution of the public understanding of this crime was the transition from thinking that revenge porn could only be “a sex tape you weren’t aware of being taped or someone putting a camera in your bedroom that you didn’t know about” to the reality that “society condones and encourages the taking of images of yourself in various states — undressed, nude — as part of a romantic relationship, but with the understanding that those images will remain private with the person you are sharing them with.”

As such, Saper says many people continue to wrongly victim-blame when it comes to these kinds of cases.

“People say, ‘Oh it’s her fault — she shouldn’t have taken these pictures,’ Saper says. “But then I ask people to imagine Googling themselves and seeing their medical records online. That’s information you freely and voluntarily shared with your doctor — but you didn’t expect to be made public.”

Saper continues: “If someone searches your name and the first thing they see is a nude image of you in a compromising position, you can’t get a job. There’s reputational harm, there’s emotional harm. My clients in these cases always find themselves in a constant state of paranoia, constantly looking back over their shoulder wondering if someone is talking to them because of what they’ve seen. You’re never really comfortable again after this happens to you.”

And, Saper adds, “What’s amazing is that the victims of these crimes range in age, socioeconomic background, many are professional women. I have had a client who was an attorney, a client who was a physical therapist. It’s not just … teens who do this because they ‘don’t know better.’ This is just how we engage in relationships now. You can be the victim of this regardless of who you are, where you are, and where you come from.”

Mary Anne Franks — a law professor at the University of Miami and vice president of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination — authored the first model criminal statute on revenge porn, the unauthorized disclosure of private, sexually explicit images. Frank also helped draft the Intimate Privacy Protection Act, introduced to Congress in July 2016.

She tells Yahoo Lifestyle that one important thing in discussing revenge porn is the problematic nature of the phrase itself.

“The term ‘revenge porn,’ though popular, is misleading in two respects,” Franks says. “First, perpetrators are not always motivated by revenge. Some act out of a desire for profit, notoriety, or entertainment, or for no particular reason at all. Perpetrators include not only bitter ex-partners, but also people who are complete strangers to their victims. Second, the term ‘revenge porn’ is sometimes interpreted to mean that taking a picture of oneself naked or engaged in a sexual act — or allowing someone else to take such a picture — is pornographic. Creating explicit images … within the context of a private, intimate relationship, an increasingly common practice, is not equivalent to creating pornography.”

Franks continues, “However, the disclosure of a private, sexually explicit image to someone other than the intended audience can usefully be described as pornographic, in the sense that it transforms a private image into public sexual entertainment. Many victim advocates accordingly use the term ‘nonconsensual pornography,’ defined as the unauthorized distribution of private, sexually explicit images or videos. The term encompasses both images originally created or obtained without consent, as well as images created or obtained with consent in the context of a confidential relationship. So, for example, the term would apply equally to a person who distributes images of women changing in dressing rooms obtained via a hidden camera, a rapist who shares cellphone video footage of his assault with his friends, and an abusive ex-partner who uploads private, intimate images to a porn site.”

She notes that “of the many misconceptions about nonconsensual pornography, the idea that it has to involve the intent to harm the victim is one of the most pernicious. A close second is the idea that people who allow themselves to be photographed or videotaped in an intimate setting, or send intimate photos or videos to their partner, are responsible for whatever negative consequences may result. Such an idea would be absurd in any other context: No one argues that a person who hands over their credit card to a waiter is responsible if that waiter decides to use that card to buy himself a yacht, or that by submitting to an STD test a person has given permission for his doctor to post the results to Facebook. We submit our private information to other people — including strangers — all the time, and rightly expect that information to remain private unless we provide explicit authorization for some other use.”

While nonconsensual pornography affects both men and women like domestic violence and sexual assault, notes Franks, it is a form of abuse disproportionately committed by men against women. Women who go on to face “a host of gender stereotypes when attempting to get help and are constantly confronted with interrogations into their behavior instead of the behavior of the perpetrators.”

“The vast majority of laws in the U.S. were written, applied, and interpreted exclusively by white men and consequently reflect a very narrow set of interests and principles,” Franks concludes. “The best-case scenario for the legal landscape on this and related topics is to take harms disproportionately suffered by women as seriously as we take harms experienced by men.”

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