In Colorado, you may find yourself standing before a judge if you post or distribute intimate images of your lover or spouse online after a breakup. How so?

Harassing your former significant other by posting nude images without his or her permission is a violation of Colorado’s revenge porn laws. These laws also apply to strangers who post images they find when they hack into someone else’s device or account. If you have been charged with this type of crime, you should seek out legal help as soon as possible.

It is also important to note that while revenge porn laws went into effect in 2014, some attorneys prefer to rely on laws that focus on defamation and invasion of privacy. What’s more, revenge porn laws have changed since they were enacted.

So, what exactly does the law say right now?

The Current Law on Revenge Porn in Colorado

Revenge porn is a type of nonconsensual pornography, or NCP, also called “cyber exploitation.” It deals with the posting or distribution of a private image for the purpose of harassing an individual.

Colorado Revised Statutes Title 18 Criminal Code § 18-7-107 lists definitions to help in understanding this statute. Someone can be charged with this act if the following are true:

• The perpetrator is 18 years of age or older.
• The perpetrator posted or distributed a video, photograph, or other image on social media or a website that displays the intimate parts of a person who is 18 or older.
• The image depicts a person who can be identified.
• The intent of publishing the image is to harass the depicted individual and cause them serious emotional distress.
• The depicted person did not give his/her consent.
• The perpetrator knew or should have known that the person depicted would have reasonably expected for the image to remain private.

Limitations of the Colorado Revenge Porn Laws

House Bill 14-1378 was the first bill brought before the legislature to address the problem of revenge porn. The legislature passed the bill with amendments, and it was subsequently signed into law.

Four years later, House and Senate Committees worked to clarify the scope of revenge porn as well as criminal offenses. House Bill 18-1264 details the changes.

Originally, posting a private image for harassment was a class 1 misdemeanor. A conviction brought a jail sentence of up to 18 months or a fine of up to $10,000.

In September 2017, The Denver Post reported that while revenge porn laws brought almost 200 charges, it was hard to get a conviction. Proving who posted an image online was the most basic problem.

The 2019 Expansion of the Law in Colorado

As reported by Colorado Politics in March 2019, the legislature passed a bill that Senator Bob Gardner introduced to expand revenge porn laws. Governor Jared Polis signed Senate Bill 100, the Unauthorized Disclosure of Intimate Images Act, into law a month later, and the law immediately went into effect.

What did the bill change? The posting or distribution of intimate images without the person’s consent is no longer a crime. Instead, the law allows the accuser to sue if three things can be proven:

• The intimate image was private.
• The depicted person did not consent to the disclosure.
• The depicted person is identifiable in the intimate image.

The statute of limitations on civil action is set at four years. In other words, you can’t be sued for any images that you may have posted more than four years ago.

What if you are being sued for images posted less than four years ago? An accuser who wins a civil case in court could be granted whatever is greatest in cost:

• Damages – noneconomic and economic – proximately caused by the image or threatened image. This includes emotional distress – whether or not it is accompanied by other damages.
• Statutory damages are not to exceed $10,000. (This amount is not calculated based on the degree of harm to the accuser.)

In addition, you may be liable for these civil damages, or monetary awards owed to the accuser, if you lose your case in court:

• attorney fees
• punitive damages
• an amount that is equal to the profit made from posting the intimate image

Defenses for Colorado Revenge Porn Charges

A common defense for revenge porn charges is that the defendant was falsely accused. Another defense is that the accuser consented fully to the posting.

If you are facing charges for posting a private image for the purpose of harassment, the correct legal strategy can be devised by considering all the facts of your case. The same is true if you are facing charges for posting a private image for pecuniary (monetary) gain.

In either case, you absolutely need a legal professional on your side with experience handling these types of charges. If you are convicted, you will likely be hit not only with serious criminal penalties, but also suffer serious damage to your reputation.

The best way to avoid this? Start putting together the strongest defense possible right away.

About the Author:

 Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.