Page 20 - January 2020 BarJournal

FEATURECRIMINAL LAW

OHIO’S NEWLY ENACTED

“REVENGE PORN” LAW

CRIMINALIZING THE NONCONSENSUAL DISSEMINATION

OF PRIVATE SEXUAL IMAGES WITH INTENT TO HARM

BY LARRY W. ZUKERMAN, S. MICHAEL LEAR & ADAM M. BROWN

n March 22, 2019, Ohio (2) The person in the image can be level of offense and penalties escalate if the
joined the growing identified from the image itself or from offender has prior convictions therefor.
number of states to pass information displayed in connection Generally, violations of R.C. 2917.211(B)
so-called “revenge porn” with the image and the offender supplied are misdemeanors of the third degree
O laws, when Am. Sub. the identifying information. (R.C. 2917.211(F)(1)(a)). However, if an
H.B. 497 went into effect. In relevant part, offender has previously been convicted of
Am. Sub. H.B. 497 enacted R.C. 2917.211, (3) The person in the image is in a state of a violation of R.C. 2917.211(B), a second
which creates the criminal offense of nudity or is engaged in a sexual act. violation is a misdemeanor of the second
“nonconsensual dissemination of private degree (R.C. 2917.211(F)(1)(b)). Likewise,
sexual images.” This Act also created a civil (4) The image is disseminated without consent if an offender has previously been
cause of action enabling victims of violations from the person in the image. convicted of two or more violations of R.C.
of R.C. 2917.211 to obtain injunctive relief, 2917.211(B), further violations constitute
compensatory and punitive damages, and (5) The image is disseminated with intent to misdemeanors of the first degree (R.C.
reasonable attorney’s fees and costs. harm the person in the image. 2917.211(F)(1)(c)).
R.C. 2917.211 is broken down into seven Further, R.C. 2917.211(F)(1)(d)
subsections — R.C. 2917.211(A) — (G). These III. R.C. 2917.211(C) provides for certain provides another exception to prosecution
subsections are as follows: exceptions to the conduct prohibited — “[i]f the offender is under eighteen
by R.C. 2917.211(B), including, but not years of age and the person in the image
I. R.C. 2917.211(A) is the definitional limited to, exceptions for dissemination is not more than five years older than
subsection, defining the words and terms of images for criminal investigative the offender, the offender shall not be
used within, including such as “disseminate,” purposes, reporting of unlawful conduct, prosecuted under this section.”
“image, “interactive computer service,” news reports or commentaries or “artistic R.C. 2917.211(F)(2) provides for
“sexual act,” etc. or expressive work,” for purposes of discretionary criminal forfeiture of
In relevant part, the word “disseminate” medical treatment or examination, and property to the state, including: any profit
is defined as “to post, distribute, or publish “for another lawful public purpose.” or proceeds and any property the offender
on a computer device, computer network, has “acquired or maintained in violation
web site, or other electronic device or IV. R.C. 2917.211(D) lists entities that are not of this section that the sentencing court
medium of communication.” liable for a violation of R.C. 2917.211(B), determines to have been acquired or
In further relevant part, the word “image” including, but not limited to, “[a] provider maintained as a result of the violation” and
means “a photograph, film, videotape, of interactive computer service,” “[a] mobile “any interest in, securities of, claim against,
digital recording, or other depiction or service”; “[a]n internet provider,” etc. or property or contractual right of any kind
portrayal of a person.” affording a source of influence over any
V. R.C. 2917.211(E) provides that any conduct enterprise that the person has established,
II. R.C. 2917.211(B) is the prohibition that is a violation of R.C. 2917.211 and any operated, controlled, or conducted in
subsection, which provides as follows: other section of the Ohio Revised Code may violation of this section that the sentencing
be prosecuted under R.C. 2917.211, the court determines to have been acquired or
(B) No person shall knowingly disseminate other section, or both. maintained as a result of the violation.”
an image of another person if all of the
following apply: VI. R.C. 2917.211(F) provides for the level VII. R.C. 2917.211(G) provides that a victim
of offense for a violation and provides for of a violation of R.C. 2917.211 may
(1) The person in the image is eighteen forfeiture of property. Violations of R.C. commence a civil cause of action against
years of age or older. 2917.211(B) are enhanceable, meaning the the offender, as described in R.C. 2907.66.

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