Getting justice when someone is the victim of "revenge porn" — as former Democratic Rep. Katie Hill vowed to do Monday after nude photos of her were leaked — is a complicated mess, filled with conflicting state laws and legal hurdles, lawyers and victims rights advocates told BuzzFeed News.
Hill's case is an example of how cyber exploitation gets distributed in this digital and polarized age. Some of the nude photographs of her were taken during a trip to Alaska. One of the photos was uploaded to a swingers subreddit. More were published by conservative outlets. Hill lives in Southern California. And after defeating the Republican incumbent in the 2018 midterms, she worked a lot in Washington, DC.
Then there are questions as to what, exactly, qualifies as cyber exploitation, if the victim suffered distress, and if the circumstances were considered newsworthy.
"I do think what will happen" to whoever distributed the photos "is very minor compared to the fact she just lost her whole political career," said victims advocate Charlotte Laws, who helped push California's initial cyber exploitation law.
Hill resigned on Sunday, three days after conservative website Redstate published text messages and photos indicating that Hill had been in a consensual sexual relationship with a woman campaign staffer. Hill, who is openly bisexual, admitted and apologized for the relationship.
Redstate also published allegations that Hill had a sexual relationship with a male staffer, which she denied. The House Ethics Committee was investigating that claim.
Hill alleged in her resignation letter that the photos came from her "abusive husband who seems determined to try to humiliate" her. She and Kenny Heslep, whose lawyer didn't return a request for comment, are currently in divorce proceedings.
"This coordinated campaign carried out by the right-wing media and Republican opponents enabling and perpetuating my husband's abuse by providing him with a platform is disgusting and unforgivable, and they will he held accountable," she said.
"Some people call this electronic assault. Digital exploitation. Others call it revenge porn," Hill said in a YouTube announcement on Monday. "As the victim of it, I call it one of the worst things we can do to our sisters and daughters."
"There's one thing I know for sure: I will not allow my experience to scare off other young women or girls from running for office," said Hill in the video. "For the sake of all of us, we cannot let that happen."
Hill is emotional and starts to cry during the video as she speaks about the impact of the photos and allegations.
"I never claimed to be perfect, but I never thought my imperfections would be weaponized and used to try and destroy me and the community I've loved for my entire life," said the 32-year-old. "I will fight to ensure that no one else has to live through what I just experienced."
Hill said last week that she'd spoken with Capitol Police and asked them to investigate the case. Capitol Police spokesperson Eva Malecki told BuzzFeed News they "do not comment on ongoing investigations."
"The patchwork of laws that we have in the United States when it comes to this kind of behavior is really doing everyone a disservice," Mary Anne Franks, a law professor at the University of Miami, told BuzzFeed News.
"It creates so much ambiguity and confusion about exactly qualifies as revenge porn; who exactly can be held accountable, what are the circumstances under which it can be brought," said Franks, who also serves as president of the Cyber Civil Rights Initiative, a nonprofit aimed at helping victims of cyber exploitation.
Distributing intimate images without consent is illegal in 46 states, including California, and also in the District of Columbia.
In California, where both Hill and Heslep reside, that fact of the crime isn't enough — the victim has to prove that they've suffered distress. Cyber exploitation is only classified as a misdemeanor in California and carries a maximum fine of $1,000 and six months in jail for a first-time offense.
"It doesn't have a lot of heft to it," Laws said.
"Having these laws is only half the equation," Carrie Goldberg, a Brooklyn lawyer who focuses on cyber exploitation cases, told BuzzFeed News. "We also need strong law enforcers to investigate."
Other laws — such as those against cyberstalking, intentional infliction of emotional distress, and copyright infringement — may also be options for Hill, and could bring a felony conviction or harsher sentence than the state's cyber exploitation law.
Cyber exploitation laws often allow exceptions for newsworthiness — such as high-profile individuals, or revealing an incident of misconduct by a public official. It will be up to a judge to decide whether Hill is an exception, although lawyers think she has a good chance of arguing against it.
"There is nothing newsworthy here," said Goldberg. "These images were distributed and published to sexually humiliate a woman and to coerce her from a hard-earned government possession."
Franks suspects that anyone accused of distributing the cyber exploitation may try and argue it is in the public interest — but, she said, the fact that Redstate also published text messages revealing a relationship between Hill and a campaign aide who is not on the public payroll makes that argument void.
"There’s nothing that the photos would add except the titillating power of this is what it actually looks like when they were engaged in certain types of intimate conduct," Franks said, "which leans pretty heavily away from the idea that you would need to see the photos in order to understand the allegations."
Franks also argued that a relationship with a campaign staffer does not reach the level of justifying nonconsensual naked photographs.
"It’s possible for someone to be guilty of unethical or not particularly good conduct and still be a victim of completely reprehensible conduct," she said.
Redstate and the Daily Mail, which also published the nude photos, may be held liable for the images, even if they were leaked to them or found the images published elsewhere online. In contrast, some nude photos were originally posted on Reddit, and California laws protect social media sites from what is published on them as platform providers, not content providers.
"Law enforcement should be subpoenaing the platforms that published the material and obtain IP evidence for items posted anonymously," Goldberg said.
Other individuals that are sharing the photos could be held liable as well.
"It shouldn’t make any difference whether it’s a primary or secondary distributor," Franks said. "The only thing that should matter is whether or not the person distributing it is aware of the fact that this is a private image that was not intended for the public."
There are arguments over what exactly is protected under cyber exploitation laws. One image shows Hill kissing her campaign staffer — and because it's not a sexually explicit photo, it would likely not count under those laws, even though it was taken privately and leaked without consent.
There are also reports that more photos are being passed around. A California Republican operative, Joe Messina, wrote in a column days before the photos were published on Redstate that he had "received over 700 images, pictures, texts, and notes on the escapades of one Katie Hill, both before and after her election."