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Can you be charged under Michigan's 'revenge porn' law?

In October 2013, California became the first state to pass a “revenge porn” law, which made the publication of sexually explicit photos or videos with the intent to threaten or blackmail another person a crime. Since then, a number of states have followed suit with varying versions of a revenge porn law.

In 2016, the Michigan Legislature enacted its version, which makes a crime to intentionally (or with the intent to threaten, coerce or intimidate) disseminate any illicit material of another if:

-          the person in the video is identifiable from the sexually explicit material itself,

-          the person who obtains the sexually explicit material of the other person under circumstances in which a reasonable person would believe that the material was to remain private, or

-          the person knew or reasonably should have known that the other person did not consent  to the dissemination of the material.  

An initial violation of this law is punishable as a misdemeanor with up to 93 days in jail, a fine up to $500 or both. Subsequent violations would still be misdemeanors, but the potential penalties could be up to one year in jail and a $1000 fine (or both).

Indeed, trying to get back at a past love by posting their dirty could lead to unforeseen legal consequences. However, what if the intent was simply to inform a potential future suitor that the person they are pursuing may not be worthy? Or even more complicated, that they are not who they say they are?

The statute’s plain language focuses on the intent to “threaten, coerce or intimidate.” Which ostensibly means that it is a crime to post sexually explicit images or videos of someone with that intent in mind. Since the statute is designed as a specific intent crime, it is possible for person to be acquitted of the crime if they were not trying to intimidate the subject of the video or coerce them to do something.

The questions arising from the statutory language exemplifies the need for an experienced criminal defense attorney when a person is charged with a cyber crime.

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