Utah revenge porn bill tweaked as lawmaker worries it could affect consenting couples

Student athletes and fellow students gather at the
University of Utah for a vigil for Lauren McCluskey on Wednesday,
Oct. 24, 2018. A lawmaker proposed changing a bill inspired by
McCluskey that would allow for prosecution if an officer shares
intimate photos of a victim to those outside of an investigation
even I the victim has died.

(Scott G Winterton, Deseret News)



Estimated read time: 3-4 minutes

SALT LAKE CITY — As Utah legislators consider a bill that would allow for prosecution against those who share revenge porn even after the victim has died, one lawmaker worries it could lead to prosecution of couples who create intimate videos or images by choice.

"This is a little bit uncomfortable, but let me just tell you. My concern with the language that the House sent over, and I know this will shock you," Sen. Todd Weiler, R-Woods Cross, said Thursday during Senate floor time. "But some couples actually record themselves in intimate positions and share those videos with other people. I know that's hard to believe, but it happens."

HB147, which seeks to close a legal gap and allow prosecution when victims are dead or incapacitated, was inspired by the killing of University of Utah student Lauren McCluskey.

Weiler said the bill as written would expand revenge porn "to anyone who's died" if photos circulate and could lead to families who have lost someone "to go after the deceased person's spouse for things that may have been consensually shared."

Weiler noted that he was one of the original sponsors of the state's revenge porn legislation.

More than two years ago, McCluskey shared intimate photos with a university police officer to aid in the investigation of her eventual killer, Melvin Shawn Rowland, 37, who was blackmailing her with the photos. A review conducted by the Utah Department of Public Safety found that officer accessed them multiple times and showed them to others on his phone on at least four occasions.

Despite outcry over the police officer's actions, Utah laws provided no avenue to prosecute the officer. The state's existing revenge porn law requires victims to suffer "actual emotional distress" for charges to be filed, which couldn't occur because McCluskey was already dead by the time the officer shared the photos.

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"I think we all agree that that is despicable and disgusting behavior and that that should be made illegal, and it's amazing to me that it's already not illegal. And certainly that was even more traumatizing for her family as they were dealing with Lauren's loss," Weiler said.

The officer denied wrongdoing, the senator noted.

HB147 as originally written would have removed the requirement for any victim to prove emotional distress or harm in revenge porn cases. The bill underwent changes in its first committee hearing that removed the requirement only for those who are deceased or incapacitated.

Weiler wants to further limit the scope of the bill.

He proposed a replacement Thursday that would only apply to cases when the victim provided photos to law enforcement. Under the new bill, prosecution could only be brought if the images get shared "without a legitimate law enforcement or investigative purpose by an individual who had access to the intimate image due to the individual's association with the investigation or prosecution."

The Senate supported the bill in an early vote, indicating it will likely receive final passage.

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