'Revenge porn' cases have lawmakers looking for a fix

Stephanie's 2 ½-year relationship was ending, so she ignored her boyfriend one night in early January, even as he called and texted her more than 20 times.

She woke up the next morning and logged on to Snapchat. What she saw left her paralyzed.

During the night, he posted on the messaging app nearly two dozen videos and images of them having sex earlier in their relationship. By the time she found out, her boyfriend's daughter had already seen the videos, and by the end of the day, so had Stephanie's friends, family members and even neighbors.

Stephanie went to the Becker Police Department, but they said there was little they could do to help. Technically, what he did wasn't even illegal.

"I broke down in the police station and cried for an hour," she said in her Becker home, tears welling up in her eyes again. "I thought, wow, I'm helpless right now."

Her dilemma, one of a growing number of cases sometimes classified as "revenge porn," is likely to get the attention of state lawmakers this year in the wake of recent court challenges in Minnesota and other states.

In December, the Minnesota Court of Appeals struck down the state's revenge porn law, which made it a crime to publish, sell or disseminate private explicit images and videos without the person's consent. Without it in place, police told Stephanie her only option was to get an emergency harassment restraining order and hope it would make him stop. The Sherburne County Attorney's Office confirmed Stephanie's case but couldn't comment on it because it's still open.

The Star Tribune is not publishing her full name because of the sensitivities involved and the potential for further retaliation.

The ruling makes Minnesota an outlier: 45 states have some kind of law addressing revenge porn. Now new cases can't be prosecuted and others pending across the state are in limbo. It's set off a legal fight that could go all the way to the state Supreme Court, and lawmakers are scrambling ahead of the upcoming legislative session to find a fix.

"We've got to have a law in place for protection. It creates so much instability in the victim's life," said Theresa Paulson, an attorney who has worked on numerous revenge porn cases in Minnesota. "Sometimes they've had to move, they've lost their jobs, they've lost standing in the community, they've lost their sense of security."

The issue is occurring with greater frequency across the country along with a proliferation of phones with photo and video capabilities, combined with a growing number of social media platforms giving anyone the ability to quickly and widely spread private content with a click.

With no federal law in place, states started passing their own laws over the last decade. A Minnesota law passed in 2016 made revenge porn a gross misdemeanor or felony offense, punishable by at least $1,000 in fines and up to two years in prison.

Those laws are now being tested in court, as judges try to find the line where free-speech rights end and privacy rights begin in the 21st century.

It was a 2017 case in Dakota County that triggered the question in Minnesota. Michael Anthony Casillas used his ex-girlfriend's passwords to hack into her e-mail and Verizon Cloud accounts to obtain sexually explicit photos and a video of her and another man. He sent the video directly to 44 recipients and posted it online.

A district judge sentenced Casillas to 23 months in prison, but the Court of Appeals struck down his conviction, saying the law was too broad and violated free-speech rights. Judges were concerned that the law didn't require proof of intent to cause harm, meaning convictions could land on people who didn't know the explicit content was supposed to be private.

"Let's say a friend shares a topless photo of a girlfriend, it ends up with me or another friend, and that friend continues to disseminate it to somebody else, and so on, and so on," said John Arechigo, Casillas' attorney. "The way this law is written, everyone down that chain of events could stand to be prosecuted."

An appeals court in Texas came to a similar conclusion, striking down the state's revenge porn law, adding that in the era of social media the daily sharing of images and other visual material has become "almost ritualistic."

Minnesota Attorney General Keith Ellison and Dakota County Attorney James Backstrom said in a filing to the state Supreme Court that explicit private images and videos of someone are akin to releasing someone's Social Security number or their medical records, which are protected.

"Must those laws, which are also based on the non consensual sharing of sensitive information, be struck down as an unconstitutional infringement of free-speech rights?" they wrote, asking the state's highest court to review the lower court ruling.

The court could take up the case, but state lawmakers already are looking for a legislative fix to the problem during the upcoming session, which convenes Feb. 11. Senate Republican Judiciary Chair Warren Limmer said he thinks they should examine other state revenge porn laws that have survived court challenges. In October, the Illinois Supreme Court upheld a revenge porn law that's similar to Minnesota's statute.

"The problem is real, and the problem seems to be growing and we need to have a legislative reaction to stop this kind of abuse," said Limmer, of Maple Grove.

Rep. John Lesch, DFL-St. Paul, the lead author of the revenge porn bill, said he's worried that adding an intent to harm provision to the law will take away protections for some victims. Now he's considering putting the question to voters via a ballot initiative.

"If there's seriously any question in anyone's mind that I could take a nude photo of my neighbor getting out of the shower and post that as free speech just because I find it interesting, and it's not malicious, that's ridiculous," he said. "If we have to make clear constitutionally that you don't have that free-speech right, then we will do that."

The videos and photos of Stephanie stayed on Snapchat for a full 24 hours before they disappeared, but she lives in fear that images of her could pop up anytime in another corner of the internet.

"I seem OK, but each night I cannot sleep," she said. "I have a hard time eating."

She's considering testifying if the issue comes up at the Legislature and she wants her young daughter to learn a lesson from her own experience.

"I have a kid, I have a job and I have responsibilities," she said. "I have a life to live and I can't let him destroy me."

Briana Bierschbach • 651-925-5042 Twitter: @bbierschbach