Legislatures failed to approve bill that addressed ACLU concerns
By Ben Giles
The Daily Record Newswire
PHOENIX - In 10 cases so far, prosecutors have been unable to file charges under Arizona statutes targeting "revenge porn" because lawmakers failed to amend the law this past legislative session.
Maricopa County Attorney Bill Montgomery said last month his office can't file charges for the unlawful distribution of images an example may be a jilted lover exacting revenge by posting nude photos of their former partners online because the Legislature failed to approve a bill that may have addressed concerns raised by the American Civil Liberties Union. It sued the state in 2014 to challenge the law.
"Criminal prosecuting agencies have basically entered an understanding with [the ACLU] that we're not going to prosecute under the statute as is," Montgomery told reporters. That left 10 cases "where we haven't been able to charge what otherwise would be a clear case of the unlawful distribution of images."
The ACLU sued in federal court on behalf of some Arizona bookstore, photographers and librarians who claimed the statute was too vague and violated the First Amendment.
Rep. J.D. Mesnard, R-Chandler, sponsored a bill this session that he said addressed the ACLU's concerns, but the session ended before the Senate could take a final vote on the measure.
The bill was unanimously approved in the House on April 1, and transmitted to the Senate the next afternoon. Senate President Andy Biggs, R-Gilbert, made a unilateral decision to adjourn sine die on April 3, and said later he forgot about the bill, as well as one other measure, during a tumultuous end to the session.
The law remains on hold while the state and the ACLU determine how to move forward in the case, which was placed on hold in 2014 with the promise of a legislative fix that never happened.
"Unfortunately in the waning days of session, it got lost among a few other bills and it wasn't addressed before the legislative session ended, so we need to get that fixed," Montgomery said.
That won't be possible until the Legislature comes back to the Capitol for a new session, Mesnard said. Without the legislative fix that fell one step short of approval, "now we're kind of in this purgatory situation," he said.
Mesnard said that he doesn't foresee Gov. Doug Ducey calling a special session solely to fix the revenge porn statute, but that if the Legislature is called to special session for any other purpose, he'll push to have his bill reconsidered at that time and passed with an emergency clause to allow it to go into effect immediately.
"I'm going to push to get it done as quickly as possible," Mesnard said.
Of the 10 cases, five have been sent to municipalities where prosecutors will try to file charges under misdemeanor statutes. In three cases, evidence has been used to help file charges for other felonies; and the county attorney's office had to flat out turn down two of the cases, Montgomery said.
"We can't prosecute because of the current state of the law," he said.
Ten cases "may not sound like a lot, but I think that just reflects a fraction of the overall cases, because I'm sure that there are many more that haven't been submitted to the office for review because of awareness by law enforcement that there are problems from the statute," Montgomery told reporters.
Even if the law were amended, it's unclear if prosecutors could then reexamine the cases and try to file charges again, according to Jerry Cobb, a spokesman for Montgomery. The county attorney can only file charges under the law in effect at the time of the offense, he said.
The problem will persist until the law is changed to address the concerns raised in the ACLU's lawsuit.
"Until that law gets fixed, people need to understand that sharing those types of images can wind up causing great harm, and we're right now unable to address those specific circumstances," Montgomery said.
Published: Fri, Jul 24, 2015
