Revenge Porn Laws: Colorado and Federal Penalties
Allegations involving the non-consensual sharing of intimate images—often referred to as "revenge porn"—are taken seriously by both law enforcement and the public. These cases often arise in emotionally charged situations, such as the end of a relationship, where intent and context can quickly become blurred. The federal TAKE IT DOWN Act introduces steep penalties and long-term consequences for individuals who distribute explicit material, especially if it involves minors. Revenge porn cases are complex and highly fact-specific. If you’re accused of such an offense, you need a strong legal defense to ensure that your rights are protected and your side of the story is heard.
What is the Federal TAKE IT DOWN Act
Colorado has long recognized the harm caused by nonconsensual image sharing, criminalizing so-called “revenge porn” over a decade ago. Today, revenge porn is also a federal offense under the TAKE IT DOWN Act—the Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act. This law prohibits the online publication of intimate visual depictions without consent, including digitally manipulated images. People can also face criminal charges for threatening to publish such content. Federal law also places a clear obligation on online platforms to remove this kind of material upon receiving notice of a potential violation. In this article, we’ll examine the federal penalties established by the TAKE IT DOWN Act and corresponding laws and potential consequences under Colorado law.
What are the Penalties for Violating the TAKE IT DOWN Act?
The TAKE IT DOWN Act creates different penalties for a variety of illegal acts. The ages of those affected can also affect the sentencing range. The publishing of digital forgeries (commonly known as “deepfakes”), authentic images, and/or the threat to publish authentic images of anyone 18 years old or older is punishable with up to 2 years in prison and/or a fine. For anyone 17 years old or younger who is subjected to the same acts, said acts are punishable with up to 3 years in prison and/or a fine. Threats to publish a deepfake of someone 18 years or older is punishable with up to 18 months in prison and/or a fine; threats to publish a deepfake of someone 17 years or younger is punishable with up to 2 ½ years of prison and/or a fine.
Does Colorado Have Revenge Porn Laws?
Yes. Colorado law makes it illegal to knowingly observe or photograph someone's private intimate areas without their consent, particularly when they reasonably expect privacy. The law also makes it unlawful to post or share these images online, whether on social media or other websites. This applies regardless of whether the person is identified or identifiable.
In 2018, the state legislature broadened the law’s scope to address additional harms caused by ‘revenge porn,’ specifically including images displaying sexual acts, even if private intimate parts are not visible. In Colorado, an individual who engages in “revenge porn” can face criminal charges under two primary statutes:
Posting a Private Image for Harassment
This statute applies to individuals at least 18 years old who post or share an image displaying another person's private intimate parts or sexual acts without their consent or when the person posting image knew or should have known that the depicted person had a reasonable expectation that the image would remain private. The action must be done with the intent to harass, intimidate, or coerce, and it must ultimately cause severe emotional distress to the person depicted. C.R.S. 18-7-107
Posting a Private Image for Harassment is a class 1 misdemeanor in Colorado, and is punishable with up to 364 days imprisonment and/or a fine of up to $10,000.
Posting a Private Image for Monetary Gain
Under this statute, anyone over the age of 18 who distributes any photograph, video or other image that displays the real or simulated private intimate parts and/or a display of sexual acts of an identified or identifiable person who is 18 years old or older, with the intent to obtain a financial benefit for the viewing, posting and/or removal of the image(s), and when consent has not been obtained or when the person posting image knew or should have known that the depicted person had a reasonable expectation that the image would remain private commits the act of Posting a Private Image For Pecuniary Gain. C.R.S. 18-7-108
These charges carry significant potential sentences, including up to 364 days imprisonment and/or up to a $10,000 fine.
Possible Domestic Violence Enhancement
In Colorado, if 'revenge porn' meets specific legal criteria, it can be considered a form of domestic violence. In our state, the definition of domestic violence varies depending on the statutory context. Generally, though, it encompasses acts or threats of violence within the context of an intimate relationship. C.R.S. 18-6-800.3
The criminal statute defines domestic violence as a crime against a person, property, or animals when it’s used to coerce, control, punish, intimidate, or direct revenge against an intimate partner.
Domestic violence itself is not a standalone charge in Colorado. Instead, it is a designation that can enhance the sentencing of an underlying crime that meets the statutory definition.
Civil Lawsuits to Recover Damages for Revenge Porn
Beyond facing criminal charges, individuals accused of ‘revenge porn’ should also be aware that alleged victims in Colorado have robust civil remedies. Victims can pursue a civil lawsuit to recover economic and non-economic damages. The court may also order punitive damages, attorney fees, and issue an injunction (court order) to prevent further distribution of the images.
The Preventing Unauthorized Disclosure of Intimate Digital Depictions Act, Senate Bill 288, empowers revenge porn victims to sue over the release, or even the threatened release, of a fake but 'highly realistic' and intimate image of them. The law applies to images created with imaging and computer software, including AI generation. The key criteria are that the person in the fake image is identifiable, did not consent to its release, and suffered emotional distress. A plaintiff can pursue up to $150,000 in damages and even recover money the defendant made from the images.
As a full-service law firm, Robinson & Henry is equipped to help clients facing both criminal and civil legal actions related to revenge porn allegations.
Possible Non-Consensual Image Defenses
Navigating a ‘revenge porn’ charge requires understanding potential defenses. In Colorado, several strategies can be used, including affirmative defenses. An affirmative defense acknowledges that the actions forming the crime occurred, but it seeks to justify or mitigate the act — for example, claiming ‘self-defense’ in an assault case. Once a defendant raises an affirmative defense, the prosecutor must disprove the defense beyond a reasonable doubt. C.R.S. 18-1-407
Lack of Required Intent
Lack of intent is often a critical line of defense. Colorado's 'revenge porn' laws generally require the prosecution to prove that you acted with a specific mental state, such as an intent to harass, intimidate, coerce, or gain financially. Our criminal defense attorney may be able to show that you lacked intent – perhaps due to accident, misunderstanding, or even an impaired mental condition – and the prosecution may be unable to prove this essential element of the crime.
Consent Defense
We also might be able to argue that the alleged victim consented to the publication or disclosure of the intimate image. However, it is important to note that under C.R.S. 13-21-1403, consent to creating the image or previous consensual disclosure does not establish that the individual consented to the subsequent disclosure or lacked a reasonable expectation of privacy.
Coercion or Duress Defense
If you were coerced, threatened, or intimidated into publishing the images, we may be able to raise a duress defense. Colorado law extends this defense when the defendant acted under the threat of unlawful force that a reasonable person could not resist.
To successfully use any of these defenses, we'd need to evaluate your case's specific facts and circumstances carefully. Their applicability and strength will depend on the exact charges and evidence.
Discovery-Related Problems
A critical component of a strong defense involves discovery. The law entitles you and your defense team to access all the prosecution’s evidence, such as police reports, victim or witness statements, and other evidence like photos, videos, and electronic data. If the district attorney’s office fails to meet these discovery obligations, we can file a motion to exclude the evidence, potentially weakening the prosecution’s case.
Your Side of the Story Deserves a Strong Defense
Facing ‘revenge pornography’ charges is serious and can come with life-altering consequences, ranging from severe criminal penalties to significant damage to your reputation and future opportunities. Understanding your legal rights and developing the best possible defense is crucial to securing a favorable outcome in your case. To confidentially discuss your case, contact our distinguished criminal defense attorneys today for a consultation.
