McHenry County 'revenge porn' case raises questions of free speech

Bethany Austin was engaged to her boyfriend of seven years when she came across another woman’s nude photographs in an iCloud account she shared with her fiancé, her attorney said.

A McHenry County case on appeal in the Illinois Supreme Court begs a controversial question: Is sharing another person’s private sexual images a right protected by the First Amendment? In Illinois, it’s a crime that could result in prison. Austin’s attorneys and a McHenry County judge, however, have said that barring someone from sharing photographs already in their possession is a limitation of free speech.

“[The] so called ‘revenge porn statute’ is a content-based restriction on speech that does not serve a compelling government interest.” Austin’s attorney Igor Bozic wrote in a March supreme court filing. “... nude images, unconditionally given to another person, are not truly private facts.”

The situation began in May 2016, when Austin learned that her fiancé was having an affair with another woman – a neighbor who lived a few blocks away from them, according to the motion.

Attempts to salvage the relationship failed, and the couple agreed to call off their wedding. They couldn’t agree how to tell their friends and family. Austin’s fiancé told others that Austin had stopped cooking and cleaning, and that the split was mutual, according to the motion.

Austin, however, “wanted to tell the truth,” her attorneys wrote.

“On or about August 25, 2016, Bethany decided to exercise her freedom of speech by sending out a four page letter accompanied with text message printouts and nude photos ...” Austin’s attorneys wrote in the Supreme Court filing.

Austin initially was charged in 2016 in McHenry County with nonconsensual dissemination of a sexual image. In Illinois, distributing another person’s sexually explicit images can be charged as a felony punishable by between one and three years in prison.

That’s how much time Austin might have served if she had been convicted, but McHenry County Judge Joel Berg dismissed the charge Aug. 8, 2018, on the basis that Austin was exercising her free speech when she sent out the other woman’s photos.

Now Illinois Assistant Attorney General Garson S. Fischer is seeking to reverse Berg’s 2018 ruling, claiming that the state’s “revenge porn” statute protects victims from the psychological and physical harm that can be associated with the nonconsensual sharing of private sexual images.

“As the name suggests, so-called ‘revenge porn’ – the dissemination of private, sexually explicit images of another without their consent – serves no purpose other than to harm the victim, and it creates in its victims a pervasive fear of unlawful physical violence,” Fischer wrote.

Attorneys gave oral arguments on the matter last month, and a decision is expected in the coming weeks.

McHenry County State’s Attorney Patrick Kenneally has declined to comment on the case while the appeal is ongoing. Former Illinois Gov. Pat Quinn signed a measure in December 2014 making the nonconsensual distribution of private sexual images a felony. The law was intended to crack down on perpetrators and further prevent the creation of more victims, most of whom are women, according to an Associated Press report at the time.

The law, which attracted critics who feared free speech limitations, was quick to make headlines.

“When Marines posted more than 130,000 explicit photos of female service members online without their permission, the message to women in uniform was that they were not equal to their male colleagues or safe in their professional lives,” Fischer wrote in his court filing.

The assistant attorney general also referenced photographs of unconscious naked women that members of the Penn State chapter of the Kappa Delta Rho fraternity posted to a members-only Facebook page.

“A fraternity brother explained that the conduct ‘wasn’t intended to hurt’ the victims … but rather was intended to be ‘funny to some extent’ to the members,” Fischer wrote.

More recently, prosecutors in Lake County filed a 12-count indictment against former 51st Illinois House District legislator Nick Sauer.

In August, Sauer resigned from the Illinois General Assembly after allegations that he uploaded nude photos of his ex-girlfriend using a fake social media account surfaced.

In her complaint filed with Chicago police and the legislative inspector general, the woman claimed that Sauer used a fake Instagram account to lure men into “graphic” discussions about her private life.

Fischer has said that revenge porn often accompanies other forms of domestic abuse, sex trafficking and, in some cases, has led to acts of physical violence against the victim.

“Furthermore, non-consensual pornography can play a role in domestic violence, with abusive partners using the threat of dissemination to keep their victims from leaving or reporting the abuse to law enforcement,” Fischer wrote.

Austin’s attorneys argue, however, that once the photographed person sends an image, it becomes the recipient’s property. The revenge porn statute, Bozic wrote, criminalizes “an adult complainant’s own stupidity at the expense of the First Amendment.”

Austin’s attorneys further alleged that the statute criminalizes a person who receives unsolicited and unwanted sexual images someone might have sent to them.

“The intent of a person for disseminating the image is irrelevant,” her attorneys wrote. “The only intent that is relevant is that the person intentionally disseminated such a photograph.”