Revenge Porn

"Revenge porn" is a type of harassment when a person has nude or sexually explicit images taken and/or disseminated without their permission. This type of harassment is often performed by an former romantic partner or a hacker. Other similar violations include "upskirting" and taking photos of another in a state of undress without their knowledge. These are subject to criminal and civil penalties under Virginia law.

Criminal Penalities for Unlawfully Taking a Photo or Video

Virginia makes it a crime for a person to "knowingly and intentionally" take a video or photograph of a nonconsenting person if:

  1. that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location, or
  2. the image is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person's legs for the purpose of capturing an image of the person's intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public (also known as "upskirting").

The nonconsenting person must also have had a reasonable expectation of privacy for the above to be considered a crime.

Exempt from criminal liability under this law are:

  • law-enforcement officers pursuant to a criminal investigation which is otherwise lawful
  • correctional officials and local or regional jail officials for security purposes or for investigations of alleged misconduct involving a person committed to a prison or jail
  • sound recordings of oral conversations (other laws may apply here)

A violation of this law is a Class 1 misdeamnor, punishable by confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.

If the nonconsenting person was under 18, or if the convicted had two or more previous convictions of the same offense within the last 10 years, then a violation of this law is a Class 6 felony, punisable by a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

Find the statute here: Va. Code 18.2-386.1.

Criminal Penalities for Unlawfully Disseminating or Selling a Photo or Video

Virginia makes it a crime when a person "with the intent to coerce, harass, or intimidate maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image."

"Another person" includes "a person whose image was used in creating, adapting, or modifying a videographic or still image with the intent to depict an actual person and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic."

A violation of this law is a Class 1 misdeamnor, punishable by confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.

Exempt from criminal liability under this law are ISPs, email providers and online platforms.

Find the statute here: Va. Code 18.2-386.2.

Civil Penalites for Violations of the Above Statutes

A person injured by someone who has engaged in the above-described conduct, where or not that wrongdoer has been charged or convicted, can bring a lawsuit.

The person injured can recover compensatory damages, punitive damages, and reasonable attorney fees and costs.

A lawsuit needs to be filed no more than 2 years after the later of:

  • the date of the last unlawful act,
  • the date on which the injured person attained 18 years of age, or
  • the date on which the injured person discovered or reasonably should have discovered the prohibited conduct.

Exempt from civil liability under this law are online platforms ("an interactive computer service" as defined by 47 U.S.C. 230(f)).

Find the statute here: Va. Code 8.01-40.4.

Have more questions or need a Virginia privacy lawyer?
D'Lima Law, LLC can help. Contact us to set up a free consultation to discuss your case.

You can call or text us at 1-800-516-8060.