Last Updated: 05.07.2022

As your Baltimore Criminal Lawyer, we have regularly discussed the dangers of social media to our clients and our strong urge to avoid posting materials that may later be used against you in a court of law.  See here, here, and here.  Now it appears that some members of the General Assembly have been reading our blog and are going to make posting explicit pictures of someone on the internet without their consent a felony (yup, you read that right, a felony).

Revenge Porn a felony?

According to this WJZ article, “Outlawing Revenge Porn: Bill To Make Release Of Explicit Pictures, Video A Felony” Maryland Delegate Jon Cardin plans on introducing legislation next term that will outlaw posting sexually explicit images of a person without their consent.  It will carry a penalty of 5 years in jail and/or a $25,000 fine.

Hurdles to prosecution

While the law may sound like a good idea, there are several issues that arise with attempting to prosecute such a crime.  For example, Maryland courts only have jurisdiction to prosecute crimes that happen within their borders.  Also, is the posting of the image protected speech?

  1. Where were the pictures taken?  Maryland or some other state?  Can you prove it beyond a reasonable doubt?
  2. Where were the pictures posted?  Is the server for the website the pictures are hosted on in Maryland or Some other state?  Can you prove that there is some “electronic” connection to the county where the crime is alleged to have occurred?
  3. Who posted the pictures?  Can you prove, beyond a reasonable doubt who actually posted the picture?
  4. Is the posting of the picture protected free speech?
  5. Was the person consenting to be photographed? Can you prove it? If they consented to be photographed, can they withdraw the consent if the picture is posted online? Is that a defense?

The Bottom Line on Posting Revenge Pictures

It will be interesting to see if this legislation gains traction, but as you can see above, there would be a number of hurdles to any potential prosecution under the proposed law.  Alternatively, if you are a victim of revenge porn or the posting of other such obscene imagery, you still would have other remedies, such as injunction, other types of computer misuse charges, cyberbullying charges (if applicable), or invasion of privacy suit in civil court.

The Baltimore Criminal Lawyer’s bottom line is that if you find yourself as a victim or as a defendant in such a situation, it is always wise to seek legal counsel quickly.  Call your ENlawyers.