Editor’s note: This is the second story in a two-part series on revenge porn in Montana, and work to provide recourse for victims.
A Montana legislator hopes one of her successors will reintroduce a bill that failed in 2017 criminalizing the creation and distribution of intimate images without the depicted person’s consent.
Montana has no law prohibiting the distribution of sexual and revealing photos without a person’s consent, most commonly known as non-consensual pornography or revenge porn.
Rep. Ellie Hill Smith, D-Missoula, sponsored House Bill 129 during the 2017 Legislature. The bill attempted to address image abuse and create stackable consequences that ranged from a misdemeanor charge to a felony.
However, the Senate Judiciary Committee removed the portion of the bill criminalizing the distribution of images, and no longer protected people who took images of themselves and sent them to an intimate partner expecting they would be kept private.
The watered-down version failed on a 0-50 vote in the Senate, with supporters agreeing that the amended version of the bill strayed too far from its original intent.
And Hill Smith was term-limited from running for re-election to the 2019 Legislature from Missoula’s House District 90. So she’s looking for a new sponsor for her bill
In an interview with Missoula Current, Hill Smith said she was surprised at the bill’s downfall, as it mustered considerable support before reaching the Senate committee.
She’s optimistic that her original version of HB 129 will be reintroduced when the Legislature convenes in January.
The city of Missoula might also be adopt a protective ordinance, if the state fails to act.
As a victim, Missoula resident Kristine Hamill is eager for Montana to pass the legislation. Before and following their divorce, Hamill’s husband of 12 years distributed naked and sexualized photos of her without her consent or knowledge to numerous websites and via email.
Hamill found out her husband was sending the photos in April 2018, locating her images on various porn websites. She contacted the Missoula City Police Department and left her home with her 11-year-old daughter, seeking refuge with friends and relatives.
According to court documents, Hamill filed a permanent restraining order against her ex-husband in May, which was granted, and last week was allowed to forensically review a laptop on which the images were stored and distributed. A review may uncover other deleted photos and remove ones on websites.
Hamill hopes to copyright her images.
“The only way I’m going to be able to get those photos down off some of those sites, is to copyright them. They’ll always be out there, no matter if I get them off because people copy them,” she said in an interview. “Even if they change one little thing about the picture, like the size or the color, then it’s hard to find.”
However, because there is no law prohibiting the practice in Montana, Hamill’s former husband wasn’t charged with a crime. And because the photos were older than a year, he avoided even being charged with a misdemeanor, according to court documents.
That’s why a bill needs to be passed or, at the city level, an ordinance should be put in place, Hamill said.
The 2017 bill’s failure came after Sen. Keith Regier, R-Kalispell, told the committee that “selfie senders” need to be aware of their actions and take responsibility for what is posted and distributed online or to others.
“It was felt that personal responsibility needs to be a part of the issue. We are all told that your email, YouTube, Facebook, whatever, can be out there for everyone to see, forever. There was some concern in committee over a naive, underage person being taken advantage of as well, but even they need to know the consequences for their actions,” Regier said during the bill’s second reading.
But Hamill said that “selfie senders” shouldn’t be blamed for their photos being distributed.
“I still think that’s wrong. It’s like saying if a girl wears a skirt to a party and gets raped, she deserves it because she wore a skirt,” she said. “Just because you take a photo, privately, and share it with your spouse or your boyfriend or your significant other, does not mean that you deserve to have it plastered all over the place.”
Regier did not return phone calls requesting his comments for this story. The Montana Attorney General’s Office declined to comment on the lack of Montana law prohibiting revenge porn.
The Montana County Attorneys Association supported the bill in 2017, saying attorneys have seen an increase in image abuse during divorces and other relationships gone bad. The issue has garnered national attention over the past two years, Hill Smith said, and more states are passing laws addressing image abuse.
“I heard from people all over the country after that to not give up and I’m deeply hopeful that we can see past this session,” Hill Smith said. “Clearly, there’s a bipartisan wish to see that, and I’m really happy that, clearly nationally, there’s a lot more understanding and they’re passing left and right all over the country.”
Hamill has reached out to national organizations that support victims of image abuse and has been contacted by four other victims in Missoula who have experienced image abuse.
She talked with Missoula Mayor John Engen as well, asking him to publicly support a bill when the time comes.
He was shocked to hear that Montana lacked a law addressing image abuse.
“Some days, I think I have heard just about everything in this job,” Engen said. “This was news to me that this was a thing. What was, I think, more shocking to me, was that she didn’t have legal recourse, that based on statute this isn’t a crime, it’s not a criminal offense.”
If something cannot be done at the state level, Engen said it might be possible for a city ordinance to address the issue, but the consequences would not be as severe as those possible under state law. A resolution decrying the practice also could be approved by the Missoula City Council.
“I don’t like feeling helpless, and I felt helpless to do much at the time. But as we talked, it occurred to me I could at least have a conversation with the city attorney to see if there was anything we could do as a functional ordinance to help address the issue,” Engen said. “And if we can’t figure out a way to provide some consequence for image abuse, at least elevate the discussion so that victims are aware that they’re not alone and, if there are opportunities to pursue legislation at the state, we ought to try.”
Engen said he has already started the process with City Attorney Jim Nugent to find out if Missoula could enact the ordinance. If possible, the mayor will ask for public discussion on the topic to help the council define the crime and its penalty.
“Some of what we do through resolution is symbolic, and in some cases, it’s symbolic of policies and practices where we really can’t move the needle. This strikes me, in our state and in our community, we could move the needle on this issue a bit,” Engen said.
Robin Turner, policy and legal director at the Montana Coalition Against Domestic and Sexual Violence, said the state’s existing privacy in communications statute does not address the distribution of images without the consent of the person depicted.
In Montana, a person can be charged with surreptitious visual observation or recordation, meaning it’s a crime to take photos or record a person without their consent when they have a reasonable expectation of privacy both in a residence or public place.
Along with criminal justice, victims want the ability to file civil claims as well when it comes to image abuse, according to a survey conducted by the coalition.
“Survivors wanted civil remedies,” Turner said. “They wanted the opportunity to take down the images quickly and to not have to go through a lot of red tape and have the ability to have an elegant solution to that problem, and I think that makes sense. I mean that makes a lot of sense to me as someone who has done this kind of work now for over 10 years.”
Turner said the coalition supported HB 129, but once the language that criminalized the distribution of images was removed, the bill became no different than the surreptitious visual observation or recordation statute.
The Legislature made changes to the same bill that required a person to prove the distributor’s “intent to terrify, intimidate, threaten, financially profit or harass.” Removing this requirement is important, Turner said, because there are many reasons for a person to distribute photos.
Hamill doesn’t believe her ex-husband intended to harass or profit from her images, which would make her allegations hard to prove in court if the bill passed after the alterations were made in 2017.
“I will say that many survivors talk about how damaging and harmful non-consensual pornography is, and just because it’s image exploitation and not a physical assault, doesn’t mean it hasn’t impacted someone and will not continue to impact them. That became very challenging later in the session,” Turner said.
Turner said that a model law was drafted by the Cyber Civil Rights Initiative, an organization aimed at ending non-consensual pornography. The model law provides precise wording and can be used as a guide to draft an image abuse law.
“Certainly it would be great to have a bill, if you look at that model law from the cyber [civil] rights initiative obviously adapted for Montana, that talks about the fact that, just because a survivor consented to sharing the image with a partner, that doesn’t mean they consented to sending it to a bunch of different people, and that shouldn’t foreclose a criminal charge,” Turner said.
Image abuse happens to people of all demographics, Turner said, and targeting naive teenagers isn’t the solution to the problem. Promoting education and awareness on image abuse is a vital part to passing legislation.
“I think there is an assumption made about survivors of this crime that they asked for it, and I think it goes to an overarching, deeply embedded value in our culture that questions victims of sexual violence,” Turner said. “We saw it with criminal prosecution of physical violence like rape. We worked to change the consent definition and to explicitly say, it doesn’t matter what a victim wore. I mean we’re still having that conversation in 2018.”
Kids can make mistakes, Hamill said, but that doesn’t mean it should affect them for the rest of their lives. There should still be consequences for those who send photos without consent. Educating kids about image abuse is something that schools should consider doing early on.
“I think kids are even more afraid to come forward. [Kids who are] being blackmailed or their pictures are being shown, are more apt to not tell an adult because they’re ashamed and more afraid than adults, and that’s sad too,” Hamill said.
While the future of an image abuse law is unknown, having a conversation is the first step to action and, to Hamill, the first steps to putting a law into place for Montana.
In 2019, Hamill plans to participate in the Legislature and tell her story.
“[In] the bill draft language, consent to disseminate is the word,” Turner said. “Maybe there’s a different word that means the same thing as distribute, but bottom line, it’s not about the word, it’s about the value. It’s about the concept of understanding that image exploitation is not the victim’s fault. So, it’s about that conversation.”