Arizona State Senator Wendy Rogers recently re-tweeted an image of Hunter Biden’s genitalia. This has caused some people to call for her prosecution under A.R.S. ⸹ 13-1425 “[u]nlawful disclosure of images depicting states of nudity or specific sexual activities”, a.k.a. Arizona’s Revenge Porn Statute. With the ever-increasing use of technology, legislatures are attempting to take action to stem the abuse and harassment that frequently occur online. The revenge porn statute was the Arizona legislature’s way of combatting the purposeful posting or emailing of personal sexual images of another person. In order to receive the protection of this statute, the person in the picture must have:
- Been depicted in a state of nudity or engaged in specific sexual activities;
- Have a reasonable expectation of privacy; and
- The image is disclosed with the intent to harm, harass, intimidate, threaten or coerce the depicted person.
Without knowing the details of the Hunter Biden image, the above seems to be true for the image that Wendy Rogers re-tweeted, although it is unclear in what context the image was taken. If we were defending this case, or a case similar to this, we would want to know where Hunter Biden was when the image was taken, who took it, who it was sent to and by whom, along with other circumstances, to argue that there was no reasonable expectation of privacy with respect to this image.
Sexual Images and the Blurry legal line
More commonly, offenses are prosecuted under this statute when a couple has broken up, and one of the partners sends a previously taken sexual image to other people to punish the other partner in the picture. In that situation, it may be difficult to build an adequate defense. However, numerous other cases are charged where it is not as clear-cut as the government would like it to be. For example, teens in consensual relationships sometimes will text each other sexual images of themselves, and in some cases the recipient will save the images and show their friends. A defense in that situation is that the image was not disclosed to offend the subject, but rather was shared out of ignorance and immaturity as to the harm it would cause.
If the image is of an underage person (below 18 years-old), special statutes regarding child pornography may apply. Given all the above, and the rampant use of social media and email in youngsters, all parents must discuss what to do, and what not to do, if your child receives a sexual or nude image. All young people should be encouraged not to take these images and send to anyone.
As for Wendy Rogers, only time will tell if Arizona Prosecutors will look into the case.