Rob Kardashian and Revenge Porn: How Victims Like Blac Chyna May Not Get the Justice They Deserve

On Wednesday, July 5, 2017, Robert Kardashian took to Instagram to post explicit photos of his ex-fiancé, Blac Chyna (Angela White), while also making allegations that she had cheated on him and used drugs and alcohol around their baby, Dream.[1] Now, Kardashian could be facing up to six months in jail, as it is a misdemeanor in California to post “non-consensual pornography.”[2] Many people that witnessed the profane rants (before they were taken down) were disgusted, but others commended Kardashian for exposing Chyna.[3] It is true that Chyna has been known to post provocative photos of herself on social media, but that does not mean Kardashian should be given leeway to do the same without her permission.[4]

This specific case calls into question a person’s privacy and sexuality.[5] Social Networking Service (“SNS”) evidence becomes most relevant in two stages of any case: discovery and trial.[6] FRE 412(a)(1) prohibits admission of evidence of the victim’s prior “sexual behavior.”[7] This rule aims “to shield the victim from the embarrassment and sexual stereotyping likely to occur during a rape trial.”[8] SNS evidence could be highly prejudicial because its admission would escalate victim-blaming.[9] “What a victim posts online is irrelevant to the defendant’s culpability.”[10] Allowing jurors to see social media content, such as provocative profile pictures of the victim, could “create doubt as to the veracity of the victim’s claim.”[11]

Although Chyna was not a victim to a rape crime, she was a victim of revenge porn. “Federal law does not explicitly address revenge porn.”[12] In 2013, California passed its first law addressing revenge porn, although “many advocates for victims of revenge porn argued it was not strong or broad enough to provide adequate relief.”[13] In many states, victims of revenge porn that wish to pursue legal remedies in federal court must use existing laws that criminalize other things such as identity theft and cyber-stalking.[14]

Another issue that comes with revenge porn is First Amendment protection. Although the First Amendment prevents the government from regulating most speech, courts will have to determine whether revenge porn falls within the category of speech that the First Amendment does not protect,” such as whether it is obscene or defaming.[15] Additionally, “[s]ince the fighting words doctrine has generally been limited to face-to-face confrontations, its application to the cyber context would be very difficult, unless courts take into account the changing form of interactions in the digital era.”[16] “The difficulty in dealing with revenge porn is in drafting legislation that properly balances privacy rights with the right to free speech.”[17]

For now, Chyna will have to rely on the current justice system to do its job. A judge granted her a temporary restraining order on Monday, July 10, 2017, that prohibits Kardashian from “coming near her or posting anything of a personal nature about her online.”[18] In the words of Lisa Bloom, Chyna’s attorney, “It stops now, Your attempts to shame and control [Chyna] are hereby rejected…Her body, her choice. Her life, her choice. Back off.”[19]

[1] Richard Winston, Revenge porn? Rob Kardashian posts sexually explicit images supposedly of Blac Chyna on social media, Los Angeles Times, http://www.latimes.com/local/lanow/la-me-ln-revenge-porn-kardashian-20170705-story.html (last visited Aug 7, 2017).

[2] Id.

[3] The Blac Chyna-Rob Kardashian feud is about so much more than revenge, USA Today, https://www.usatoday.com/story/news/2017/07/10/blac-chyna-rob-kardashian-feud-amazon-prime-day-trumps-cybersecurity-unit-and-more-mondays-news/455038001/ (last visited Aug 7, 2017).

[4] Id.

[5] Id.

[6] Sydney Janzen, Amending Rape Shield Laws: Outdated Statutes Fail to Protect Victims on Social Media, 48 J. Marshall L. Rev. 1087 (2015).

[7] Id. at 1112.

[8] Id.

[9] Id. at 1113.

[10] Id. at 1115.

[11] Id. at 1116.

[12] Michelle Daniels, Chapters 859 & 863: Model Revenge Porn Legislation or Merely A Work in Progress?, 46 McGeorge L. Rev. 297, 300 (2014).

[13] Id.

[14] Id.

[15] Id.

[16] Snehal Desai, Smile for the Camera: The Revenge Pornography Dilemma, California’s Approach, and Its Constitutionality, 42 Hastings Const. L.Q. 443, 457 (2015).

[17] Daniels, supra note 12.

[18] Sabina Ghebremedhin & Lesley Messer, Blac Chyna granted restraining order against Rob Kardashian ABC News, http://abcnews.go.com/Entertainment/blac-chyna-granted-restraining-order-rob-kardashian/story?id=48547944 (last visited Aug 7, 2017). (Noting that the protective order will remain in place until August 8, when there is another scheduled hearing.)

[19] Lisa Bloom (@LisaBloom), Twitter (July 7, 2017, 3:53 PM), https://twitter.com/LisaBloom/status/883428821751529474.