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25 Wm. & Mary J. Race Gender & Soc. Just. 303 (2018-2019)
No Means No: An Argument for the Expansion of Rape Shield Laws to Cases of Nonconsensual Pornography

handle is hein.journals/wmjwl25 and id is 327 raw text is: NO MEANS NO: AN ARGUMENT FOR THE EXPANSION OF RAPE SHIELD LAWS TO CASES OF NONCONSENSUAL PORNOGRAPHY AUSTIN VINING* ABSTRACT This Article considers the impact of a hypothetical nonconsen- sual pornography victim's previous sexual history on potential legal remedies, both criminal and civil. Due to jury bias and the difficulty in proving standard elements of many claims, the research shows that such a victim would likely be unsuccessful in court. This Article then turns to two legal concepts from related fields-the incremental harm doctrine and rape shield laws-and considers what effect their application would have on the hypothetical victim's case. Ultimately, the author presents an argument for the logical expansion of rape shield laws to cases of nonconsensual pornography. INTRODUCTION I. CRIMINAL PROVISIONS: THE IMPACT OF PREVIOUS PUBLIC DISTRIBUTION OF SEXUAL IMAGES A. California's Nonconsensual Pornography Statute B. Sexual Harassment Law II. CIVIL PROVISIONS: THE IMPACT OF PREVIOUS PUBLIC DISTRIBUTION OF SEXUAL IMAGES A. Intentional Infliction of Emotional Distress B. Intrusion upon Seclusion C. Public Disclosure of Private Facts D. Copyright III. INCREMENTAL HARM DOCTRINE VERSUS RAPE SHIELD LAWS- A COMPARATIVE ANALYSIS A. Incremental Harm Doctrine B. Rape Shield Laws CONCLUSION * Graduate Research Fellow, Marion B. Brechner First Amendment Project, Univer- sity of Florida, Gainesville, Fla.; BA, 2014, Psychology, Louisiana Tech University; BA, 2014, Journalism, Louisiana Tech University; MA, 2016, Meek School of Journalism, University of Mississippi; JD Candidate, Levin College of Law, University of Florida; PhD Student, Mass Communication, University of Florida. The author would like to thank Dr. Victoria Smith Ekstrand and Rachel L. Jones for their comments on an earlier draft of this Article. 303