2016 ‘revenge porn’ case set for February trial in McHenry County

An Island Lake woman’s “revenge porn” case is set to go to trial in February following an Illinois Supreme Court finding that the non-consensual sharing of private, sexual images isn’t protected by free speech.

Bethany Austin, 43, was charged in 2016 with nonconsensual dissemination of a sexual image – a felony typically punishable by one to three years in prison. The situation began in 2016 after Austin discovered another woman’s nude photographs in an iCloud account she shared with her fiancé at the time.

When the couple’s relationship ended, Austin’s ex-fiancé allegedly told family and friends that that Austin had stopped cooking and cleaning and claimed that the split was mutual, court documents show.

Austin, however, “wanted to tell the truth,” her attorneys wrote in a March 2019 court filing.

On Aug. 25, 2016, Austin distributed a four-page letter accompanied with text message printouts and nude photos of the woman in an attempt to set the record straight, court records show. Austin was arrested as a result but McHenry County Judge Joel Berg dismissed that charge in August 2018, ruling that Austin was exercising her free speech when she sent out the other woman’s photos.

The Illinois Supreme Court reversed Berg’s ruling in October 2019, however. Justices Rita Garman and Mary Jane Theis dissented, partly on the basis that the law criminalizes the sharing of images based on their content. Still, a majority of Illinois Supreme Court justices agreed the statute is constitutional, and Austin’s case was sent back to McHenry County.

Her attorney, Igor Bozic, said Monday that he’s optimistic about the outcome of the case.

“We have an interesting set of facts,” Bozic said. “First, Bethany is not somebody who was related to this other person and she happened to receive photographs unsolicited to her personal computer.”

On Jan. 4, Austin waived her right to a jury trial and agreed instead to a trial by judge, scheduled to begin on Feb. 17.

“Certainly, there are no expectations of privacy once you send [an image] to an unrelated person,” Bozic said. “You can’t expect to have those pictures private.”

Illinois’ revenge porn laws are some of the most strict in the country.

According to state law, non-consensual dissemination of a sexual image occurs when a person intentionally shares an image of another who is at least 18 years old, is exposed, or engaged in a sex act and is identifiable. The law also makes a distinction that a reasonable person would know or understand that the image was to remain private or knew or should have known that the person in the image would not consent to it being shared.

The outcome of Austin’s First Amendment argument had the potential to reach beyond McHenry County and carry implications for similar cases.

“There’s certainly a lot of eyes on the case because there’s certainly a lot of lives and even jobs that could be affected,” Bozic said.

The McHenry County prosecutor assigned to Austin’s case could not be reached for comment.