Revenge Porn cases not the easiest to prove

The recent indictment of a Rochester man on so-called "Revenge Porn" charges may seem like an open and shut case, but prosecution of such cases can be difficult due to a number of factors.

Dustin Demanche, 26, of 24-B Lafayette St., was formally charged earlier this month by a Strafford County grand jury with nonconsensual dissemination of private sexual images, a Class B felony that carries a maximum seven-year prison term if convicted.

Demanche is said to have committed the crime on May 27 when "purposely, and with the intent to harass (his partner) disseminated publicly on Facebook a private sexual image of (her) and (the woman) is identifiable from the image itself."

The indictment also states "the defendant knew or should have known that the image was to remain private; and the defendant knew or should have known that (she) had not consented to the dissemination of the image."

The victim told a Rochester Police Officer that she had gotten into an argument with her boyfriend over texts and Facebook Messenger and told him she no longer wanted to talk to him.

That's when he told her he was going to "post your shit" and there was nothing police could do about it, according to a police affidavit.

Soon after the victim received a screenshot of the sexually explicit photograph of her that was taken from Demanche's Facebook page, the affidavit states.

The affidavit states the picture is clearly of the victim, shirtless and braless, with her breasts in full view.

The victim said that the picture had been sent to Demanche for his eyes only and not to be seen by anyone else. She also said that at no time did she ever give Demanche permission to post the photograph, according to the affidavit.

The officer then spoke with Demanche at his home on Lafayette Street. He told the officer he didn't post the photograph following the argument with the victim, the affidavit states. He further stated that he believed he was allowed to because "as soon as the photos were sent to him, they became his property and he could do with that property as he pleases."

He was told that wasn't the case as the photos were intended to be private, and placed under arrest.

The "revenge porn" statute has only been on the books in New Hampshire for about a year.

Now some 38 states have revenge porn laws, but the laws have a lot of moving parts, experts agree, making them sometimes problematic to prosecute.

For one, quite simply, many people are not aware of the law.

This could be construed by the court as a mitigating factor and is surely something a skilled defense lawyer would pursue. In the affidavit Demanche clearly states - both to the officer and his girlfriend - he believed there was nothing anyone could do about it. It's not unreasonable to believe it's possible he really didn't think it was a crime.

After all New Hampshire's Revenge Porn law didn't go on the books till just last year.

Other well-known defenses include trying to convince a jury that the defendant didn't know it would cause emotional distress or that they mistakenly uploaded the wrong image.

The latter two defenses wouldn't likely wash in this case, however, since Demanche clearly states he intended to, according to the affidavit.

In fact, the term revenge porn, itself is under scrutiny. The Cyber Civil Rights Initiative stresses that a better term is Nonconsensual Porn (NCP), since the statute also applies to lawbreakers who upload sexual images of men or women they are not in a relationship with.

Maine's first NCP case involved such a case when a waiter uploaded a sexual image from a patron's phone he left on the table when he went to the eatery's bathroom.

The waiter uploaded it from the phone and later at his home uploaded it to a social media site.

John Dunne Jr., 27, formerly of Bath, pleaded guilty last September to felony aggravated criminal invasion of computer privacy and got a one-year deferred sentence meaning if he stays clean for a year the felony charge goes away. He also got a year in jail with all but two weeks suspended for misdemeanor invasion of privacy charges.

The punishment was a far cry from the maximum five year prison sentence he could've been dealt had he been found guilty after a jury trial.

Earlier this month Revenge Porn hit the celebrity spotlight, too, when it was learned reality star Rob Kardashian posted nude pics of former girlfriend Blaq Chyna after accusing her of cheating on him.

Some legal sources believe Chyna may have hurt her case by "liking" the photos on social media.

California's law carries a six-month jail stint for a first NCP offense.