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Monday, February 24, 2014

HB326: Making Revenge Porn a Criminal Misdemeanor has Passed the Virginia Senate Courts of Justice Committee

 
HB326- proposes dissemination of images of totally nude, in a state of undress, or engaged in sexual conduct of adults to become a criminal offense passed the Senate Courts of Justice Committee today. 

YEAS--Marsh, McEachin, Saslaw, Norment, Howell, Lucas, Edwards, Puller, Obenshain, McDougle, Stuart, Vogel, Wexton--13.
NAYS--Petersen--1.
ABSTENTIONS--Stanley--1. 

Past Posts on this issue/proposal:
There were some very good comments made during the discussion and I want to share a few of them here with you. 
 
The patron stated that he lifted much of the language (where they could) from other statutes including the obscene phone call statute. 


I have transcribed the audio of the meeting but I am NOT going to give the name of the Committee members who made the statement, if you don’t agree with me not assigning ownership to the statements you can always attend the committee meetings to know who said what.
Senator A asked:
I’ve had a similar bill the last two years were malicious felonies, the same concept and it went to Finance and it was killed because of the fiscal impact, is there a fiscal impact?” 

The answer from the patron was, “No Senator with a misdemeanor we can avoid a fiscal impact otherwise it wouldn’t get out of Appropriations”. 
Legal Counsel to the Committee stated: 
My concerns are on line 45 and 46
45 as defined in § 18.2-390, where such person knows or has reason to know
46 that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of
“the person not be licensed or authorized to disseminate or sell I don’t understand what that means in the practical context. If I am lawfully in possession of an image then I can do whatever I wish with that image. I can sell it or I can publish that image as I am lawfully in possession of it but this seems to suggest otherwise that somehow I must have some additional authorization and we are unclear what form that authorization must take. The vagueness here sets up a 1st Amendment challenge. I can’t tell you that it would be ruled unconstitutional but it would certainly be challenged as unconstitutional….(inaudible)…… because it is vague. We could all argue or could debate all day long what constitutes authority because it’s the criminal code section it is too vague and unworkable." 

A Commonwealth Attorney from the patron’s district stood to speak in favor of the bill and also stated that the Virginia Commonwealth Attorney Association supports it. No one stood in opposition of HB326. 

Senator C asked: 

“I’m still wondering why we are treating this as a crime as a civil matter, people can post intimate materials on the Internet all the time, about your sexual habits, phone numbers all this stuff is on the Internet and you don’t have a criminal clause, you have a civil cause of action unless like Senator (A) said they are blackmailing you…… so why is this a crime as opposed to a civil cause of action you could sue someone for defamation or invasion of privacy” 

Right? 

The patron stated maybe in 5 years. Senator C and the Patron went back and fourth for another 2 minutes on civil cases require a complainant to hire an attorney so only serious cases would be dragged through the courts but as a criminal case the State handles it at no cost to the complainant so whose to say everybody won’t line up to file charges against their ex?  Senator C said, “where does it stop, if you make this a crime where does it stop, someone calling someone a slut on the Internet, putting someone’s phone on the Internet. You can go a lot of places with this concept. 

In the end the desire to make this a crime and not a civil matter was the clear goal of the patron. 

And as “vague and unworkable” as Legal Counsel told the entire Committee this bill is and that it would create a 1st Amendment challenge, the Senators passed it out of Committee today. 

This bill now goes to the Senate floor for a vote. 

I don’t know what to expect because the concerns of Legal Counsel will NOT be know by the Senators who are not on this Committee when they are voting, unless one of today’s Senators mentions the statement on the floor of the chamber. I doubt this will happen but you never know. 

Common sense and our Constitution took a holiday today in Senate Room B for this bill and my earlier post on HB403. Very disappointing! 

Mary Devoy

Note:

Details Emerge in Lunsford Photo Scandal, September 25, 2013
Albemarle County Commonwealth's Attorney Denise Lunsford
C.A. Lunsford is the requestor of HB326 and she was the C.A. who spoke in favor of the bill during session