Faye Sadou/AP
On Sunday, Rep. Katie Hill (D-Calif.), announced she was stepping down, putting an end to a recently launched House Ethics Committee investigation into her alleged affair with a male aide. But her resignation won’t stop the spread of nude photos of Hill, published by the right-wing news site RedState and the British tabloid the Daily Mail, some of which also picture a female campaign staffer with whom Hill has admitted a consensual but “inappropriate” relationship.
Hill has blamed the distribution of these private photos on her estranged husband, Kenny Heslep, and on “hateful political operatives” enabling “a smear campaign built around cyber exploitation.” “The fact is I am going through a divorce from an abusive husband who seems determined to try to humiliate me,” she said in a statement to the Washington Post last week. In her resignation letter, Hill emphasized that she is pursuing all available legal options. “Having private photos of personal moments weaponized against me has been an appalling invasion of my privacy,” she wrote. “It’s also illegal.”
You all deserve to hear from me about why I made this devastating decision and where things go from here. I said the fight continues. I mean it, and I hope you’re with me. https://t.co/ogKkyW7I6f
— Katie Hill (@KatieHill4CA) October 28, 2019
Hill’s efforts to seek recourse in the courts could go several ways. Depending on the circumstances under which the photos were published, their distributors could be criminally charged with harassment, stalking, extortion, or identity theft, according to Mary Anne Franks, a University of Miami School of Law professor and the president of the Cyber Civil Rights Initiative, a nonprofit that assists victims of nonconsensual pornography, commonly known as revenge porn. The dissemination of Hill’s photos also likely fall under laws banning revenge porn, Franks says.
The Cyber Civil Rights Initiative’s definition of nonconsensual pornography—the distribution of sexually graphic images of individuals without their consent—clearly fits the photos published on RedState and the Daily Mail. The group estimates that 1 in 8 social media users have been targets of nonconsensual pornography, and that women are 1.7 times more likely to be targeted than men. “It’s a privacy issue, and it’s a women’s rights issue, and it’s a progressive issue,” Franks says.
According to Franks, most states allow victims to file civil lawsuits over the distribution of nonconsensual porn, and all but four—Massachusetts, Mississippi, South Carolina, and Wyoming—have laws criminalizing it. But the laws vary significantly by location. In Washington, DC, where Capitol Police are investigating the distribution of the images of Hill, it is a crime to disclose private, sexual images of people without their consent, but only if it’s done for financial gain or with the intent of harming the persons depicted. In this regard, the law treats revenge porn differently than other kinds of privacy violations, Franks explains. “When we say that you can’t distribute people’s Social Security numbers or medical records without consent, we don’t usually say you can do it so long as you’re not trying to hurt their feelings,” she says.
The requirement to prove intent could come into play if Hill tries to go after RedState for publishing revenge porn. “RedState is probably going to say, ‘Oh hey, we are doing it because we’re trying to report on a newsworthy story,'” Franks says. (The author of the RedState article that included images of Hill argued that “the public should know about” her affairs “as they determine that elected official’s fitness to serve.”) Revenge porn laws in the United Kingdom have similar requirements, potentially complicating any legal case against the Daily Mail. “Unfortunately, as soon as we’re talking about naked photos,” Franks says, “so many of the states and also the UK write laws that say you have to intend to harass or to distress the victim.”
Hill might have more luck in California, whose anti-revenge porn law (the first of its kind, passed in 2013) does not require prosecutors to prove intent to cause harm. “Under California law, the only requirement is that you know or you should have known that it would cause a person intense distress. That shouldn’t be a difficult thing to show, because publishing someone’s incredibly intimate photos is likely to cause distress,” Franks says. “A reasonable person would know that.”
But that doesn’t mean it’s easy to get law enforcement to go after people who post revenge porn. While a public figure or politician should have no problem getting police to take their allegations seriously, Franks says it can be difficult to convince cops that revenge porn—typically a misdemeanor—is a serious crime. “It’s not the kind of thing, when you’re talking about just your average victim, that a police officer’s particularly inclined to pursue,” Franks says. “And beyond that, not particularly something that a prosecutor may be inclined to really be aggressive about.”
These are the kinds of systemic problems that Hill has signaled she will tackle as she plans her next move. “Now my fight is going to be to defeat this type of exploitation that so many women are victims to,” she wrote in her resignation letter, “and which will keep countless women and girls from running for office or entering public light.”
