Illinois Supreme Court reverses ruling in ‘revenge porn’ case

An Illinois Supreme Court ruling in a McHenry County “revenge porn” case has determined that the nonconsensual sharing of private, sexual images doesn’t fall under the protections of free speech.

The Illinois Supreme Court ruled Oct. 18 that McHenry County Judge Joel Berg was wrong to dismiss a charge of nonconsensual dissemination of sexual images against an Island Lake woman. The act, often referred to as “revenge porn,” is a criminal offense in Illinois, punishable as either a felony or misdemeanor, depending on the circumstances. In Berg’s 2018 ruling, the judge found that the state’s revenge porn law was unconstitutional on the grounds that the accused, 42-year-old Bethany Austin, was exercising her free speech when she sent out another woman’s nude photos.

The case had the potential to reach beyond McHenry County and affect the outcomes of similar cases such as that of former state Rep. Nick Sauer, who is accused of sharing explicit photos of two women.

“... First Amendment protections are less rigorous where matters of purely private significance are at issue,” Justice Scott Neville wrote in a 43-page ruling.

The majority of Illinois Supreme Court justices agreed that disseminating sexual images without consent is not a right protected by the First Amendment. Justices Rita Garman and Mary Jane Theis dissented, however, partly on the basis that the law criminalizes the sharing of images based on their content.

“It is not a crime under this statute to disseminate a picture of a fully clothed adult man or woman, even an unflattering image obtained by the offender under circumstances in which a reasonable person would know or understand the image was to remain private and he knows or should have known the person in the image had not consented to its dissemination,” Garman wrote. “However, if the man or woman in the image is naked, the content of that photo makes it a possible crime.”

In Illinois, it’s a crime to share a sexually explicit photo or image that “a reasonable person would understand that the images were to remain private.” Although it’s not a charge commonly seen in McHenry County, State’s Attorney Patrick Kenneally described the act as an “intrusion into a person’s privacy.”

“In today’s digitized age, it’s one of the ways that people exact revenge,” Kenneally said.

Since 2015, four people have been charged in McHenry County under the same law: nonconsensual dissemination of sexual images.

Allegations range from an ex-sexual partner uploading a video to a porn site, to someone sharing photographs on Facebook and posting harassing messages online. So far, 43 states have enacted laws barring the dissemination of revenge porn. Earlier this year, Facebook also announced new technology that would make it easier to find and remove intimate pictures and videos posted without the subject’s consent.

Revenge porn allegations have even made their way to the statehouse, and prompted Sauer to resign in 2018. The disgraced lawmaker is charged in Lake County with 12 felony counts of disseminating private sexual images after allegedly sharing images of two women online.

In a complaint filed with Chicago police and the legislative inspector general, a former girlfriend claimed that Sauer used a fake Instagram account to lure men into “graphic” discussions about her private life. Sauer’s attorney, Daniel Locallo, could not be reached to say how the higher court’s ruling might affect Sauer’s case, which is set to go to trial Dec. 9.

The case at the center of the Supreme Court’s ruling began in 2016, when Island Lake woman Bethany Austin discovered another woman’s nude photographs in an iCloud account she shared with her fiancé, her attorney said.

On Aug. 25, 2016, Austin sent out a four-page letter accompanied with text message printouts and nude photos of the woman, court records show. She was subsequently charged with nonconsensual dissemination of sexual images. McHenry County Judge Joel Berg dismissed the charge in August 2018, however, ruling that Austin was exercising her free speech when she sent out the other woman’s photos. Her attorney, Igor Bozic, could not be reached to ask how he might proceed with the case now that it’s been sent back to McHenry County. A new court date has not yet been set.

Austin’s attorneys have previously argued that once someone sends a photograph or video to another person, it becomes the recipient’s property. The revenge porn statute, Bozic has said, criminalizes “an adult complainant’s own stupidity at the expense of the First Amendment.”

In the Supreme Court’s written opinion, however, Neville identified Berg’s ruling as “a fundamental misunderstanding” of the nature of sharing sexual photos.

“Given the circuit court’s factual starting point, the boyfriend to whom a nude selfie is sent is the second party to the private communication – not a third party,” Neville wrote. “As a consequence, a girlfriend who transmits such a photo does not automatically relinquish ‘all expectations of privacy in the images,’ as the circuit court hypothesized.”

The Supreme Court also agreed with Illinois Assistant Attorney General Garson S. Fischer’s claims that the “revenge porn” statute protects victims from the psychological and physical harm that can be associated with the act. The sharing of private sexual images can also occur hand-in-hand with other crimes, Neville wrote.

“Perpetrators threaten disclosure to prevent victims from ending relationships, reporting abuse, or obtaining custody of children,” he wrote. “Sex traffickers and pimps threaten disclosure to trap unwilling individuals in the sex trade. Rapists record their sexual assaults to humiliate victims and deter them from reporting the attacks.”