2015.13: When is a Model Not a Model?


Being of questionable character, she then quietly changed her model law, without conceding her initial model law was fundamentally flawed, or acknowledging that her detractors had a point, to add her “public interest” exception. This, she contended, cured all First Amendment problems, aside from all the others she continued to vehemently deny

Following up on SHG’s comment, here is Mary Anne Franks’s model revenge-porn-criminalization statute from October 2013:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Definitions: For the purposes of this section,

1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.

2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.

3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:

1) This section shall not apply to lawful and common practices of law enforcement, reporting of unlawful activity, or legal proceedings.

2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

Franks acted pretty sure in November 2013 that that statute was defensible. Then she quietly changed it. Here is her model revenge-porn-criminalization statute from July 2014:

An actor may not knowingly disclose an image of another, identifiable person, whose intimate parts are exposed or who is engaged in a sexual act, when the actor knows or should have known that the depicted person has not consented to such disclosure.

A. Definitions. For the purposes of this section,

(1) “Disclose” includes transferring, publishing, distributing, or reproducing;

(2) “Image” includes a photograph, film, videotape, recording, digital, or other reproduction;

(3) “Intimate parts” means the naked genitals, pubic area, or female adult nipple of the person;

(4) “Sexual act” includes but is not limited to masturbation, genital, anal, or oral sex.

B. Exceptions. This section does not apply to

(1) Images involving voluntary exposure in public or commercial settings; or

(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

I’ll bet Franks is really sure about this one. Trust her.


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