Sexual Cyber Harassment
What happens if a person shares sexually explicit photographs or videos with a lover, thinking the pictures will remain private?
What happens when someone secretly video records or photographs another person taking a shower, undressing, or engaging in sexual activity?
Either way, if a person publishes those images or videos of private nudity or sexually explicit conduct online, then the person can be prosecuted under Florida’s new sexual cyber-harassment statute.
Additionally, the victim can bring a civil lawsuit for monetary damages (including at least $5,000 in damages for each image plus attorney fees).
Attorneys for Sexual Cyberharassment in Tampa, FL
The attorneys at Sammis Law Firm in Tampa, FL, represent individuals accused of publishing revenge porn online.
Many revenge porn sites showcasing these photographs make it very hard for law enforcement to find identifying information about the person posting the pictures.
In addition to representing the person accused of the crime, the attorneys at Sammis Law Firm also represent victims in these cases when they pursue a lawsuit against the cyber harasser seeking civil damages.
That civil lawsuit is a civil action to obtain injunctive relief, a minimum of $5,000 in monetary damages, and reasonable attorney fees and costs as provided by Section 784.049(5), F.S.
In many of these cases, the victim can also seek a restraining order for cyberstalking against the person who originally began posting the images or video.
We represent clients in cyber-harassment and cyberstalking cases throughout Tampa and Plant City in Hillsborough County, St. Petersburg and Clearwater in Pinellas County, New Port Richey, and Dade City in Pasco County, Brooksville in Hernando County, and Lakeland and Bartow in Polk County, FL.
Call (813) 250-0500 to discuss your case.
Does Florida Law Prohibit Sexual Cyber Harassment?
Sharing intimate images of others to intimidate, harass, or embarrass another person has become all too common.
Although the motivation for these crimes is often revenge, other motives might exist.
The accused can be arrested and charged with sexual cyber harassment or face an embarrassing civil lawsuit for monetary damages.
Criminal charges arise when sexually explicit images of another are published on Internet websites without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person.
When such images are published on Internet websites, they never go away. People who frequent these websites look for such images and will often download them and republish them repeatedly.
For this reason, the images can be viewed indefinitely by anyone with a computer. Just knowing about the existence of such images can cause the victim significant psychological harm.
Safeguarding the psychological well-being of persons depicted in such images was considered a compelling interest by the Florida Legislature when the statute was created.
The existence of such images on Internet websites causes those depicted in such images significant psychological harm.
Penalties for Sexually Cyberharassing Another Person
The penalties for sexual cyberharassing another person depend on several factors, including the number of prior convictions:
- For a first offense, a person accused of willfully and maliciously sexually cyber harasses another person commits a misdemeanor of the first degree, punishable by up to 12 months in jail and a $1,000 fine;
- For a second offense, the crime can be charged as a third degree felony punishable by up to five years imprisonment and a $5,000 fine.
Additionally, crimes for sexual cyber harassing another person sometimes qualify as extortion under Florida Statute Section 836.05, a serious felony offense under Florida law.
Crimes for extortion are charged as a second-degree felony punishable by up to fifteen (15) years in prison and a $10,000 fine.
The crime of extortion is classified as a Level 6 offense severity ranking under Florida’s Criminal Punishment Code.
Elements of Sexual Cyberharassment / Revenge Porn in Florida
Section 784.049, F.S., defines “sexual cyberharassment” as:
- publishing to an Internet website or disseminating through electronic means to another person;
- a sexually explicit image of a person that contains or conveys the personal identification information of the depicted person;
- without the depicted person’s consent;
- contrary to the depicted person’s reasonable expectation that the image would remain private;
- for no legitimate purpose; and
- with the intent of causing substantial emotional distress to the depicted person.
In other to prove the offense of sexual cyberharassment under Section 784.049, the prosecutor must prove the following elements of the offense beyond all reasonable doubt:
- the defendant published a sexually explicit image of a person;
- the defendant acted willfully and maliciously;
- with the intent of causing substantial emotional distress to the depicted person;
- the image contained or conveyed the personal identification information of the depicted person to an Internet website;
- the image was published without the depicted person’s consent; and
- the image was published for no legitimate purpose.
In many of these cases, the victim suffers from “doxing” which refers to broadcasting personally identifiable information about an individual on the Internet.
Doing so can expose the victim to an anonymous mob of harassers who call their phone, send them emails, and contact their friends, family, co-workers, and neighbors.
Sometimes the “doxing” involves blackmail or sextortion by asking for money to end the harassment.
Definitions in the Sexual Cyberharassment Statute
The cyberharassment statute contains the following definitions:
- “sexually explicit image” means any image depicting nudity, as defined in s. 847.001, or depicting a person engaging in sexual conduct, as defined in s. 847.001;
- “image” includes, but is not limited to, any photograph, picture, motion picture, film, video, or representation; and
- “personal identification information” is defined to include the same meaning as provided in s. 817.568.
Search Warrants for Sexual Cyberharassment
During a criminal investigation for sexual cyberharassment, the law enforcement officer might file an affidavit seeking a search warrant to investigate further violations of the statute prohibiting sexual cyberharassment, including warrants issued to search a private dwelling.
Under Section 784.049(4)(a), a law enforcement officer may arrest, without an arrest warrant, any person that he or she has probable cause to believe has violated this section.
In other words, all elements of the offense need not be committed in the officer’s presence before the officer can make a warrantless arrest.
The statute for sexual cyberharassment contains an explicit exception to the misdemeanor warrant requirement.
When a misdemeanor is not listed as an exception to the arrest warrant requirement, the officer is not permitted to make a warrantless arrest when all elements of the offense are not committed in the officer’s presence.
Civil Action for Sexual Cyberharassment in Florida
The victim of cyber-harassment or any aggrieved person may initiate a civil action against someone who violates this section to obtain all appropriate relief.
That relief might include preventing or remedying a violation of this section, including obtaining the following:
- injunctive relief to get the images off the internet as much as possible;
- monetary damages to include $5,000 or actual damages incurred as a result of a violation of this section, whichever is greater; and
- reasonable attorney fees and costs.
The criminal and civil penalties of Florida’s cyber-harassment statute do not apply to:
- A provider of an interactive computer service as defined in 47 U.S.C. s. 230(f), information service as defined in 47 U.S.C. s. 153, or communications service as defined in s. 202.11, that provides the transmission, storage, or caching of electronic communications or messages of others; other related telecommunications or commercial mobile radio service; or content provided by another person; or
- A law enforcement officer, as defined in s. 943.10, or any local, state, federal, or military law enforcement agency that publishes a sexually explicit image in connection with the performance of his or her duties as a law enforcement officer or law enforcement agency.
Under this statute, the victim may initiate a civil action against a person who violates the law, and the civil action may include an injunction and monetary damages.
Jurisdiction and Venue for the Prosecution of Cyberharassment
Under Section 784.049, a violation of the sexual cyberharassment statute can be committed in Florida if any conduct that is an element of the offense, or any harm to the depicted person resulting from the offense, occurs within this state.
Warrantless Arrest Exception for Cyberharassment
Section 901.15(16) provides that if there is probable cause to believe that the person has committed a criminal act of sexual cyberharassment as described in s. 784.049, the officer can make a warrantless misdemeanor arrest even though the officer did not see each element of the offense being committed in the officer’s presence.
In this way, misdemeanor sexual cyberharassment is an exception to Florida’s misdemeanor warrant requirement.
This means that a law enforcement officer can arrest a person without an arrest warrant if the officer has probable cause to believe that the person has violated the law.
Reasons to Hire an Attorney
Over the years, we have seen many of these cases. Prosecutors often have a hard time proving that the defendant was the person who published the images online.
Prosecutors rely on a confession to prosecute these crimes. If the person accused of the offense retains an attorney early in the investigation, they have the best chance of successfully invoking their right to remain silent and their right to have the assistance of counsel.
By remaining silent, you might have the best chance of avoiding prosecution.
For the same reason, victims of sexual cyberharassment and revenge porn often have a difficult time seeking civil damages. Getting a confession from the cyber harasser benefits the case.
Additional Resources
Cyber Civil Rights Initiative – CCRI is a nonprofit advocacy organization that provides resources to victims of revenge porn, people whose nude or sexually explicit images are posted online without their consent or for any legitimate purpose. The CCRI has recommended DMCA Defender and Copybyte as trustworthy companies a victim can hire to contact the websites publishing the images to take them down.
Articles on Revenge Porn – Visit the Mashable website to find their recent articles and stories on revenge porn. Learn about legislation in various states, how social media sites like Facebook handle the problem, national reporting tools, and tips for victims.
Florida’s Revenge Porn Law, is it working? – Read a long-form story discussing the number of times this offense is prosecuted in Florida. According to the article, Hillsborough County, Orange County, and Palm Beach County each had six (6) cases filed from 2015 through February 2018. During that same period, Pinellas County and Martin County had three cases filed, Pasco County had 2 cases filed, and Charlotte County had one case filed.
Sexual Cyber Harassment Legal Outline – Visit the website of the Florida Courts to find a benchbook or legal outline discussing the sexual cyber harassment statute, found in § 784.049. The crime is a misdemeanor of the first degree for a first offense or a third degree felony for a second offense. Elements of the offense include publishing a sexually explicit image of a person that contains or conveys the personal identification information of the depicted person to an internet website without the person’s consent, for no legitimate purpose, and with the intent of causing emotional distress.
This article was last updated on Thursday, April 20, 2023.
