Does Anthony Weiner’s latest sexting scandal break revenge porn laws?

The American people may never see the last of Anthony’s wiener.

Late Sunday night, the New York Post ran a story revealing former Congressman Anthony Weiner is back at it again with his sexting ways. The tabloid detailed an online flirtation, complete with a series of racy pictures, between Weiner and a “40-something divorcee…[who lives] out West” that included a shot of Weiner lying in bed with his son—and a clear bulge in his shorts.

This revelation was not the first time Weiner has been caught in an online sexting scandal. In 2011, a private Twitter DM mistakenly sent as a public tweet triggered Weiner’s resignation from Congress. Two years later, in the midst of a run for mayor of New York City, further revelations showed Weiner’s sexting had continued, this time under the moniker “Carlos Danger,” which quickly ended his attempted political rehabilitation.

Once again, news of Weiner’s sexting habit has brought consequences for the disgraced politician. On Monday, Weiner’s wife, prominent Hillary Clinton aide Huma Abedin, announced her separation from Weiner. The New York Daily News, in which Weiner wrote a recurring column, did the same. So did NY1, where he was regular contributor.

Weiner isn’t the only person who could face potential consequences. While the Post didn’t reveal the identity of the woman on the other side of Weiner’s digital dalliance, nor did the paper specifically specify if she leaked the photos of Weiner to the outlet herself, the Post‘s interview—which identified her as a “self-avowed supporter of Donald Trump and the National Rifle Association”—makes it appear as if she was the source.

All of which brings up the question: Could her leaking of the photos violate laws around the distribution of revenge porn?

It’s not an easy question to answer. The reasons for that ambiguity highlight why the patchwork of state-level revenge porn laws often fail victims across the country.

The first factor that needs to be determined is if the pictures of Weiner published by the Post, which were intended to be of a sexual nature but never show full nudity, meet the threshold to trigger revenge porn laws.

“Just as we have 34 states that have revenge porn laws, we have 34 different revenge porn laws. They’re all different,” explained Carrie Goldberg, a Brooklyn-based lawyer specializing in revenge porn cases. “The majority of the laws have a broader definition of nudity. It’s not just nudity that must be depicted, it could also be a sex act. For instance, sometimes revenge porn consists of a woman who is fully clothed performing a oral sex. She’s not showing any nudity, but the distribution of a picture like that would still be very humiliating and harm-causing. Many laws contain language that apply to sex acts.”

New York, where both Weiner and the Post are located, doesn’t have any laws on the books about revenge porn. It’s unclear from the article where exactly the woman from “out West” lives. In California, for example, the law states that revenge porn needs to show an “intimate body part…[meaning] any portion of the genitals, the anus, and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.”

There’s also the question of why the photos were distributed in the first place. Some state revenge porn laws require there to be an intent to harass the victim or cause them some kind of harm. States with rules about motive can exclude a lot of cases because a desire to cause harm to the victim isn’t always the primary reason behind circulating these types of images. “Sometimes they just want to be involved in a scandal. Or they distribute [so] they can get money. Or they distribute [so] they’re competing with their friends, because they want to see who can get the most pictures of sorority girls,” Goldberg explained.

However, she added, regardless of the reason revenge porn images are released, the harm done to the victim is typically the same. “The point is that, no matter what the motive of the offender is, the harm to the victim is just as great if their naked pictures are being distributed publicly,” Goldberg insisted. “Motive should never factor in here, because the harm to the victim is there no matter what the offender’s motive is.”

David Bateman, a Seattle-based partner at law firm K&L Gates, which has a practice in revenge porn cases, notes that many states’ revenge porn laws have exemptions for disclosures made in the public interest. For example, the law Washington state passed last year exempts “disclosures made in the public interest including, but not limited to, the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.”

While the vast majority of revenge porn victims aren’t famous public figures, Weiner most certainly is. Not only was he a high-profile liberal bomb-thrower during his seven terms in the U.S. House of Representatives, but his wife is a longtime top aide to a woman who FiveThirtyEight gives a nearly 80 percent likelihood of being the next president of the United States. The law grants fewer privacy rights to public figures than it does to private citizens, and some of Clinton’s political rivals immediately jumped on Weiner’s most recent scandal—lending credence to the argument that the disclosure of the pictures is in the public interest.

In a statement on Monday morning, Republican presidential candidate Donald Trump used Weiner as a cudgel to bash Clinton.

As Bateman notes, Weiner is the ultimate edge case. In all of the civil actions wherein his firm has helped a revenge porn victim sue the person who released their pictures, he’s never seen a single instance where the defense mounted an argument about the importance of the public’s right to know about the picture. “Weiner has regularly been used an example of why there needs to be a First Amendment escape clause when it comes to revenge porn laws.”

Even so, exempting famous people from revenge porn laws, argues Goldberg, is problematic because the victim still experiences emotional and reputational harm regardless of whether the audience for the images are a single high school’s student body or the millions of people who clicked on Weiner’s name when it popped up as a Facebook trending topic. “Many of us would argue, particularly after the Hulk Hogan case and the Erin Andrew case, that celebrities should be entitled to sexual privacy just like the rest of us,” she said. “So the fact that it is a public figure whose nudes went public shouldn’t mean that person is outside of the scope of the law.”

All of these rules vary state to state; however, the greatest variance lies in the states that don’t have revenge porn laws at all. 

If the woman who possibly leaked Weiner’s photos lives in one of the 16 states lacking such a law, there is effectively no jurisdiction in which she could be prosecuted. While a picture posted on the internet is technically accessible from anywhere in the United States, Goldberg isn’t aware of a single revenge porn case prosecuted in a jurisdiction where neither the suspect or victim was located.

The disconnect between the borderless nature of the crime and the geographic limitations to prosecute said crime is why activists have pushed for Congress to approve a national revenge porn bill at the federal level.

Earlier this year, a bipartisan coalition including Rep. Jackie Speier (D–Calif.) and Rep. Ryan Costello (R–Pa.) introduced the Intimate Privacy Protection Act, which is based on model legislation drafted by Mary Anne Franks, the legislative and tech policy director of the Cyber Civil Rights Initiative. If passed, the law would create a single national standard for revenge porn cases. Franks notes that, because Weiner’s photo does not depict nudity or sexual activity, it would not be covered under the the Intimate Privacy Protection Act, which has yet to reach a floor vote in the House.

“I want to emphasize, however, that none of this means that the disclosure in this case was justifiable. Invasions of privacy can cause serious damage and should not be treated lightly, even when the subjects are political figures,” she charges. “An argument could be made that making a photo like this public serves no legitimate public interest, or at least no interest that outweighs the potential harm done to Mr. Weiner’s own privacy and the privacy of his family. It is possible that the discloser could be sued for invasion of privacy, intentional infliction of emotional distress, or some other grounds.”

For anyone who believes they have been a victim of revenge porn, the Cyber Civil Rights Initiative has a number of resources for how to deal with the situation.

H/T The Stranger