F.S. 784.049 - Sexual Cyberharassment in Florida

In Florida, sexual cyberharassment has been illegal since 2015 and the enactment of F.S. 784.049. 

Sometimes referred to as “the revenge porn law,” it’s an offense that involves electronically disseminating or publishing sexually explicit images of another person without their consent, contrary to their reasonable expectation of privacy and for no legitimate purpose with the intention of causing them emotional distress. 

According to the National Association of Attorneys General, although the phenomenon of revenge porn first began to emerge in the 1980s, it didn’t become widespread until about 2010.

“Sexually explicit” images are defined in F.S. 784.09(2)(d) as revealing photos or videos that either depict nudity, as outlined in F.S. 847.001, or that show a person engaging in sexual conduct. 

To meet the statutory definition of “sexual cyberharassment,” F.S. 784.09(2)(c) requires that the image needs to either contain or convey the personal identification information of the person shown without their consent. As outlined in F.S. 784.09(2)(b), that can mean anything that identifies them: name, email or physical address, phone number, date of birth, social security number or any unique physical representation. In other words, if there is no way of knowing who the person in the image is, then the conduct wouldn’t meet the definition of sexual cyberharassment. 

Often, the images or videos in question were initially sent willingly by the person in them  – either to the defendant or someone else. According to Women’s Health Interactive, 88% of adults over 18 report “sexting” at some point in their lives, and more than 82% reported they’d done so in the past year. However, F.S. 784.(09)2)(c) makes it clear that simply because there’s evidence that a person sends a sexually explicit image to someone else doesn’t automatically mean they had no reasonable expectation of privacy for that image. One might freely send racy pictures to their significant other, but that doesn’t mean the recipient can do whatever they want with those images - especially post them publicly without the sender’s permission. 

The last element of the crime comes down to intent. It’s not enough to show that the image was shared electronically. Prosecutors are expected to prove that the defendant intended that by sharing the image, they would cause substantial emotional distress to the person in the picture. 

As with any internet crime, questions of jurisdiction are often raised early on. Florida can prosecute sexual cyberharassment if the posting actually took place here OR if the harm occurred here. For example, if a man in Florida posts nude pictures of his ex, who lives in Maine, from a Florida computer - without her consent and with intention to cause her emotional distress - the crime is considered to have occurred in Florida. Similarly, if a Maine resident posts pictures from a computer in Maine of an ex who resides in Florida, that is also considered a Florida crime.  

Broward criminal defense lawyer Richard Ansara has successfully represented clients accused of cybersexual harassment in South Florida. This includes jury trials that ended in “not guilty” verdicts. 

Florida is one of 48 states and D.C. that have enacted some type of revenge porn or sexual cyberharassment legislation. 

But one emerging area of law as it pertains to F.S. 784.09 is the rise of AI (artificial intelligence) and so-called “deep fakes,” which use advancing technology to take photos of real people and turn them into pornographic images and videos. As noted by the Boston University School of Law, deep fakes can be made by uploading reference photos or videos and then “swapping” those with target images, creating the illusion that the person depicted is actually participating in these actions – despite the fact that they never have. 

There have been cases in which individuals have been blackmailed or harassed with such images, despite the fact that it isn’t really them.

This raised some complicated questions from the perspective of criminal defense attorneys. Does a nude image have to be “real” for it to be a crime? As it turns out: No.

Florida is one of a few states that have addressed this. In 2022, state lawmakers passed SB 1798, which not only increased the monetary damages a person can receive as a result of violations relating to sexual cyberharassment, it also created F.S. 836.13. 

F.S. 836.13 defines “altered sexual depiction” to mean any visual depiction that, as a result of any type of digital, electronic, mechanical or other modification, alteration or adaptation, depicts a realistic version of an identifiable person:

• With nude body parts of one person as the nude body parts as the identifiable body parts of another person.
• With computer-generated nude body parts as the nude body parts of the identifiable person.
• Engaging in sexual conduct in which the identifiable person didn’t actually engage. 

The statute requires proof the defendant knew or reasonably should have known the depiction was an altered sexual depiction. Disclaimers to the effect that the person depicted isn’t actually the one engaging in such acts aren’t sufficient to protect defendants from a conviction. Every act, thing or transaction is considered a separate offense - and can be punished as such. Conviction for disseminating altered sexual depiction carries a possible prison sentence of up to 5 years.

Sexual cyberharassment in Florida is a first-degree misdemeanor, punishable by up to one year in jail. However, aggravating factors could result in tougher sentences. For example, a second or subsequent offense is treated as a third-degree felony, punishable by up to five years in prison. If the alleged victim is a minor, that could also result in more serious penalties.

The statute also opens the door to civil liability, which is a separate process initiated by the alleged victim. They can seek monetary damages - either $10,000 or actual damages, whichever is greater. As the defendant, you can be compelled to pay that out of your own pocket. (No insurance policy will cover criminal acts.) You could also be on the hook for the plaintiff’s attorney’s fees in that case. 

Also worth noting that if the person in the images or videos was a minor, you could also face charges for child pornography, which can carry even more significant penalties than sexual cyberharassment and likely includes being added to the state’s sex offender registry.

If you are arrested for violation of F.S. 784.049, it is critical that you contact a criminal defense lawyer as soon as possible. 
Contact the experienced Fort Lauderdale criminal defense lawyers at The Ansara Law Firm, by calling (954) 761-4011 or toll-free at (954) 761-4011.