Lawmakers did not intend for Colorado's revenge porn law to apply only to images of fully exposed female anatomy, the Court of Appeals decided on Thursday, rejecting a man's argument that the suggestive pictures he posted of his ex-fiancé without her consent did not amount to a crime.
Legislation passed in 2014 criminalized the act of distributing videos or images of an adult's private intimate parts when the person depicted had an expectation the content would remain private — an act termed "revenge porn." Included in the definition of intimate parts is "the breast of a female," which Trevor A. Pellegrin attempted to argue required the full breast to be visible for him to be in violation.
A three-judge panel for the Court of Appeals disagreed. Although the phrase was ambiguous, the actions of the General Assembly suggested that lawmakers did not intend to narrow the scope of the law, Judge Rebecca R. Freyre wrote.
"Rather, the legislative history reveals a clear purpose to protect victims from the harm caused by the posting of private intimate parts images online and to strengthen protections from those harms," she explained in the September 2 opinion. "It does not follow that the harm is avoided or even lessened by posting a photo of only a portion of an identifiable person’s exposed breast."
Freyre added: "If the General Assembly had intended to limit the term 'breast of a female' to the entire breast, it could have done so."
Pellegrin's fiancé ended her relationship with him in April 2017. Although the two of them still had contact, when Pellegrin learned she was seeing someone else, he repeatedly called, texted and hurled lewd names at her. Pellegrin threatened to post nude photos of her online and send them to a minor relative.
The victim reported this to police, but they said they could do nothing until the pictures appeared online.
In late July 2017, the victim learned from family members that her Facebook profile and cover pictures had been changed. There were now nude photos of her — taken by Pellegrin — of her displayed on her page, but with only the side of her right breast exposed. Her page also was altered to say that she was a "cheater" and "slut."
In addition, she received messages based on a Craigslist advertisement that contained suggestive pictures of her. The text of the ad said that the victim lived "in the springs I’m looking for a few guys to come show me a good time," and invited viewers to "text me a nude photo of yourself to get mine."
Police arrested Pellegrin, who admitted he posted some of the photos but claimed he took them down quickly.
At trial in 2018, Pellegrin argued the victim had actually posted the photos herself. But an El Paso County jury convicted him of stalking, harassment and posting a private image for harassment on Craigslist (but not on Facebook). Pellegrin received three years of probation and 90 days in jail.
On appeal, Pellegrin argued that if the revenge porn law applied to anything less than showing the entire female breast, it would be unconstitutional for failing to indicate what conduct is specifically outlawed.
"If the statute prohibits posting an image depicting any portion of a female breast, it sweeps in a host of images that display 'private intimate parts' but are not overtly sexual or particularly private," public defender Emily Hessler wrote to the appeals court. "For example, the statute would criminalize posting ... an image of a woman in a low-cut shirt or skimpy bikini. The statute would chill free expression."
Assistant Attorney General Brittany Limes countered during oral arguments that adopting Pellegrin's view would create "loopholes that allow these sort of savvy operators to avoid liability while inflicting the very harm that the statute was intended to prevent."
Freyre, in the panel's opinion, dismissed Pellegrin's contention that the court would render the revenge porn law vague by deciding a full breast was not required. Prosecutors must prove that in addition to posting the image online, a perpetrator did not have the victim's consent, inflicted serious emotional distress and had an intent to harass the victim.
In the case of Pellegrin's victim, she "contacted the police, moved from her home, and quit her job. She testified that seeing private photos of herself online made her feel 'violated' and 'humiliated'," Freyre wrote. "This is precisely the type of harm [the revenge porn law] was intended to address."
Rep. Terri Carver, R-Colorado Springs, one of the sponsors of a 2018 update to the law, concurred with the panel's determination.
"The posting has to show an identifiable person, which these obviously did," she said. "This is exactly the type of pictures and conduct that we intended to address."
The panel also disagreed with Pellegrin's claim that the El Paso County trial judge should have declared a mistrial after one juror indicated after the reading of the verdict that she disagreed with it. Juror 8, as she was identified, responded "no" when District Court Chief Judge William Bain asked each jury member individually if they voted for guilt.
Bain sent the jury back to deliberate, even though Pellegrin's lawyer worried about the possibility of other jurors "bullying" Juror 8. The woman subsequently said the rest of the jury "cleared it up for me," and said she supported a guilty verdict.
The appellate panel upheld Bain's handling of the situation, finding no evidence that the jury coerced the dissenting member into declaring Pellegrin guilty.
Finally, the judges declined to find that Colorado's stalking law is unconstitutional.
The case is People v. Pellegrin.
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