Manitou Springs Police Officer Jacob Carley has been arrested for revenge porn after posting nude pictures of a woman he was dating on his Tumblr blog. The woman told police that she personally took the photos of herself for Carley while they were dating, but that she never intended for them to be seen by anyone else and she never gave anyone permission to post them online. Carley was booked into jail on a misdemeanor charge of posting a private image for harassment in violation of Colorado Revised Statute 18-7-107. Carley's arrest is possible due to recent legislation outlawing revenge porn. This charge is just the latest levied against Carley.
As a provider of online services this author is familiar with revenge porn. I first encountered the problem shortly after launching my first website when someone posted what would otherwise have been a perfectly acceptable complaint about a woman had the author not chosen to include a nude image with the complaint. That website like most I have been involved with prohibited all forms of nude images so it was easy to find that author in violation of the usage terms and remove the content as soon as I became aware of it. That was back in 2009 and back then I never would have thought that the author may have committed a crime by posting the image because the law did not distinguish between nude and non-nude images of adults. As a result posting a nude image of an individual without their consent was widely considered a form of free speech unless it was associated with conduct that by itself would constitute a crime. Conduct such as harassment. People could get away with posting revenge porn simply by claiming that they were doing it for the purpose of criticizing the person in the image. People would create posts calling people ugly and including a nude photo as proof. Then they would say that they were exercising their First Amendment right to criticize someone for being ugly with proof. That is why revenge porn laws are basically just extensions of existing harassment laws. Law such as CRS 18-7-107 (https://tinyurl.com/yxz88dpg) must have language such as "With the intent to harass, intimidate, or coerce the depicted person" in order to overcome free speech defenses.
In Colorado the term "harass" means "intentionally bothering, annoying, or alarming someone" (https://www.shouselaw.com/co/defense/laws/harassment/). That language means that although the act of posting an intimate image without consent might not be a crime that one need only show that the act was done to bother the other person in order to criminalize the act. Such language draws a clear line between harassment of private people and the publishing of newsworthy images. For instance, it does not make it a crime for a tabloid to post nude images of a celebrity without their consent because such an act is clearly done for commercial purposes without regard for the impact it has on the person in the photo, but it would be fairly easy to show that posting a private intimate image of a private person in a non-commercial way could only be done with the intent to bother that person. It could still leave the door open for non-criminal commercial publications like Girls Gone Wild videos because the subjective intent of such publishers is to make money and not to bother the people they are exploiting. The line between free speech and criminal harassment has to be drawn at the subjective intent of the speaker while recognizing that posting an image with the knowledge that it will bother the person in itself is not the same as posting it for some other purpose without regard for the impact it has on the person. Cases like Officer Jacob Casey posting the private image of an ex-flame on a Tumblr blog that he does not make any money off of is a textbook case of posting a private image that could have no other intent but to harass.
Carley told police that he had posted the images a week after they had broken up because he thought she was "hot" and didn't think she would see them because she had recently deleted her Tumblr account. Carley's explanation seems like something someone in his position familiar with the law would say. His self-serving statements were clearly made in preparation for a defense that his intent was not to harass his ex. I foresee his attorney arguing that he posted them online to share with friends on a platform that he thought she did not use anymore. I don't think a reasonable jury would buy that story. I think that most people including Officer Carley would know that deleting her Tumblr account did nothing to stop her from finding out about public posts made by other Tumblr users. If she had Google Alerts setup for her name she would get an email from Google saying that someone posted her name on Tumblr as soon as Google Bot found her name anywhere on the internet. The timing of the breakup and the publication is also problematic for Carley. Posting the nudes so soon after breaking up is an act far more likely to be motivated by spite than wanting his buddies to see just how hot that chick he banged was. To his credit his explanation is technically possible, but not likely and jurors are people that can see through such denials.
According to media reports (see video below), Carley was twice convicted of assault and sentenced to probation in northern Colorado in 2013 and 2015. We are not sure what circumstances surrounded those cases. He has been with the Manitou Springs Police Department (MSPD) since 2018, so we think he may have gotten those records expunged or at least treated as misdemeanors or violations after completing his probation terms. Still, we are surprised to see that someone with two recent assault convictions could be hired as a police officer anywhere.
The MSPD released a statement denouncing Carley on their Facebook page (https://www.facebook.com/ManitouSpringsPD/posts/4043518715667217) which reads as follows:
"Yesterday, Manitou Springs Police Officer Jacob Carley was arrested on charges of violating Section 18-7-107 of the Colorado Revised Statutes. He has been placed on administrative leave pending the outcome of the criminal and internal investigations. As these investigations are ongoing I am not at liberty to provide further details. I can state the alleged conduct leading to the officers arrest did not occur during the performance of his law enforcement duties nor was it within the scope of his employment. Our actions and responsibilities related to investigating complaints against police officers are guided by State Statute and internal policy. " - Brian Churchill