The woman had seen the photos before. In fact, she had taken them and shared them via private message with a man. Now, without her consent, they were posted publicly and she was tagged in them.
The incident became one of the first cases to be brought in criminal court under Vermont’s newly enacted law on what’s known as revenge porn. However, earlier this month, a judge dismissed the case because he found the law unconstitutional on free-speech grounds.
Gov. Peter Shumlin signs into law the bill outlawing the disclosure of sexually explicit images without the subject’s consent. File photo by Sam Heller/VTDigger
Now, just over one year after the bill was signed into law, the statute appears poised to be tested before the Vermont Supreme Court.
How to deal with the relatively new phenomenon of revenge porn in law has been a topic of discussion and debate across the country.
As social media and technology have eased communication, it’s easier for people to share intimate images with their significant other. But a jilted lover may seek vengeance by publicly posting intimate photos of the former partner that were originally shared by consent.
According to the Florida-based group Civil Cyber Rights Initiative, 34 states have some law in place that addresses revenge porn.
The bill in Vermont sparked fierce debate between advocates of victims’ rights and supporters of civil liberties. Some argued that the new law was vital to protect Vermonters, primarily women, from exploitation and violation of privacy. Others raised concerns that the statute would step on constitutionally protected rights to free speech, arguing the issue is best addressed in civil court.
Ultimately, the Legislature crafted and passed a statute that creates a penalty of up to two years in prison and a fine of $2,000.
In October, after the Bennington County woman learned the images had been posted, she tried to reach the man whose Facebook page it was.
She took down her account, and her friends posted messages in her defense and reported the images to Facebook.
“I was humiliated so I just wanted people to know what was posted wasn’t voluntary,” the woman said in a sworn statement to police.
In a twist, authorities have charged a third party in the case, not the man on whose Facebook page the images were seen.
According to court papers, the images were posted by Rebekah VanBuren — a woman who was romantically involved with the man to whom the photos had been sent.
VanBuren allegedly accessed the man’s private Facebook messages through a phone and found the images. VanBuren called the woman depicted in the images and told her she is a “moral-less pig” and threatened to contact her employer, according to authorities.
Prosecutors say VanBuren admitted to a trooper who investigated the case that she posted the photos publicly. She reportedly said to him, “You think she learned her lesson?”
The following month, the Bennington County state’s attorney’s office charged VanBuren with violating the new revenge porn statute. According to many people involved in the legal system interviewed for this story, the charge was likely the first application of the new law.
Albert Fox, who is representing VanBuren in the case, argued that the law violates the First Amendment of the U.S. Constitution and Article 13 of the Vermont Constitution, which pertains to freedom of speech. He filed a motion in February to dismiss the charges on those grounds.
Fox argued the law is overbroad in restraining a form of speech that is constitutionally protected. He also said the law is not narrow enough.
“When criminal charges rest solely on acts protected by the constitutional right to free speech, the charges must be dismissed,” he wrote.
Fox argued there cannot be a reasonable expectation of privacy when someone sends nude photographs over Facebook, even when sent in a private message instead of a public post.
VanBuren, he wrote, “is in effect accused of transferring some images from one more private section of Facebook to another more public.”
Superior Court Judge David Howard ruled in favor of VanBuren on July 1 and dismissed the case.
In his five-page decision, Howard agreed with the defendant that nude images in themselves do not qualify as obscenity. There could be a potential argument that the intent behind revenge porn makes it obscene, he said. However, he noted there aren’t other court decisions that support that argument.
Meanwhile, Howard wrote, the state failed to prove there is a “compelling governmental interest.”
Howard noted the case was different from the “typical” revenge porn cases between two people who break up.
This case shows how the law could be applied to a third party, he wrote. The law, he wrote, “would apparently criminalize disclosure by a party who never had any relationship with (the) complainant and who received such unsolicited sexual photographs and decided to disclose them to convince (the) complainant not to send any more or out of anger for being the recipient.”
“It would appear to criminalize that person’s spouse who might find such unsolicited images and forward them out of anger and disgust,” he continued.
John Treadwell, chief of the criminal division in the attorney general’s office, has been following the case in Bennington. He said the office continues to believe the law is constitutional.
Last week, Bennington County State’s Attorney Erica Marthage and Attorney General Bill Sorrell jointly filed a petition for the Vermont Supreme Court to review the case.
Because the judge’s decision involves an adverse ruling in a misdemeanor case, the prosecution cannot seek an appeal as in other cases, according to Treadwell.
Defender General Matt Valerio. File photo by Elizabeth Hewitt/VTDigger
Defender General Matt Valerio has also kept an eye on the case in Bennington. In testimony to the Legislature about the revenge porn bill, he raised concerns that the bill could be overbroad and might not survive the test of strict scrutiny — two issues raised in the Bennington case.
Valerio said cases that deal with harm to one’s reputation are typically handled in civil court. “Little by little, the criminal law has started to expand into areas that are traditionally civil,” Valerio said.
He said this law relates to questions of how government power should be constrained by the Constitution.
“If you think that human behavior doesn’t have to be governed at all times by government intervention, this is not the statute for you,” Valerio said.
Lia Ernst, a staff attorney and public advocate at the American Civil Liberties Union of Vermont, also raised the question of balancing interests of free speech and privacy.
“We understand and respect the very real privacy interests that motivated the revenge porn law, and finding the right balance between protecting people’s most intimate images and protecting free speech rights is not always easy,” Ernst said Wednesday.
She said establishing criminal penalties for sharing images that people possess legally is “constitutionally risky territory.”
She said that until it is clear that civil rights of action and other avenues are not sufficient, “we should be slow to turn lawful speech into a crime.”
Meanwhile, victims rights advocates hold their position that a law is necessary to prevent revenge porn.
Auburn Watersong, of the Network Against Domestic and Sexual Violence, said that legally addressing revenge porn is critical to tackling a broader cultural attitude.
“A rape culture would have us believe that victims, primarily women, do not have the right to privacy,” Watersong said.
She said that in addition to the initial violations that occur when someone disseminates a private image of an individual, there are safety risks. It is important to recognize “how very dangerous these violations can be,” Watersong said.
Rep. Kesha Ram, D-Burlington, who was a sponsor of the bill, said Thursday that lawmakers worked hard to balance First Amendment and privacy concerns in crafting the law.
If it is overturned, she believes the Legislature should “get through the gray area and come out with a stronger law that supports Vermonters and their privacy over their own bodies.”
“I will continue to work hard to ensure that we recognize in our law books and our society that people have the right to their own body,” said Ram, who is seeking the Democratic nomination for lieutenant governor.
(Correction: An earlier version of this story misspelled Lia Ernst’s last name.)
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