District of Columbia Statutory Criminal Law

  1. D.C. Code § 22-2201 – Obscene activities and conduct

    1. Introduction

      Publication of non-consensual pornography may violate D.C.’s prohibition on obscene activities and conduct.

    2. Text of Statute(s)

      D. C. Code § 22–2201. Certain obscene activities and conduct declared unlawful; definitions; penalties; affirmative defenses; exception

    3. Cases

      No relevant case law at this time.

    4. Practice Pointers

      There is little case law on obscenity in D.C., but it will generally be interpreted in light of the U.S. Supreme Court’s Miller test.1 Therefore, when pursuing an obscenity claim, a lawyer should look to federal law for persuasive authority.

    1. See Lakin v. United States, 363 A.2d 990, 995-97 (D.C. 1976) (citing Miller v. California, 413 U.S. 15 (1973). 

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  3. D.C. Code. § 23-542 - Interception and disclosure of wire or oral communications.

    1. Introduction

      The wiretapping statute may be relevant to WMC victims when a third party discovers and then discloses intimate communication of videos or photographs.

    2. Text of Statute

      § 23-541. Definitions.

      § 23-542. Interception, disclosure, and use of wire or oral communications prohibited.

      § 23-543. Possession, sale, distribution, manufacture, assembly, and advertising of wire or oral communication intercepting devices prohibited.

    3. Cases

      1. Napper v. United States, 22 A.3d 758, 767 (D.C. 2011).
        • Procedural Posture: Defendant convicted of first degree murder appealed.
        • Law: DC wiretap statute
        • Facts: Defendant was convicted of first degree murder after a jury trial. He appealed his conviction, in part on the grounds that evidence from a recorded conversation should have been excluded because he believed he had an expectation that the conversation would be kept quiet.
        • Outcome: Affirmed. As relevant here, the court held that the D.C. wiretap statute should, broadly speaking, be interpreted in line with the federal wiretap statute and related Fourth Amendment jurisprudence.
        • Special Notes: Though there are differences, lawyers should look to interpretations of the federal wiretap statute for persuasive authority.
      2. CAIR Action Network, Inc. v. Gaubatz, No. 09-02030, 2012 WL 4054141 (D.D.C. Sept. 17, 2012).
        • Procedural Posture: Defendants moved to dismiss the complaint.
        • Law: D.C. wiretap statute; federal wiretap statute.
        • Facts: Defendant organizations allegedly procured individual defendant to become an intern at plaintiff Muslim advocacy organization in order to steal internal documents and record internal conversations.
        • Outcome: Motion granted in part and denied in part. Most significant here, while there is no “procurement” civil liability under the Federal Wiretap Act for third parties who direct violations of the act, the D.C. wiretap act does permit private enforcement of procurement liability.
    4. Practice Pointers

      • D.C. is a “one party consent” jurisdiction.
      • In situations where the Wiretap Act is applicable, a victim may also have a private right of action to seek civil damages.
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  4. Stalking — D.C. Code § 22-3133

    1. Introduction

      In most cases, victims will have a strong argument that publishers of nonconsensual intimate images or videos have violated the D.C. stalking statute.

    2. Text of Statute(s)

      § 22-3131. Legislative intent.

      (a) The Council finds that stalking is a serious problem in this city and nationwide. Stalking involves severe intrusions on the victim's personal privacy and autonomy. It is a crime that can have a long-lasting impact on the victim's quality of life, and creates risks to the security and safety of the victim and others, even in the absence of express threats of physical harm. Stalking conduct often becomes increasingly violent over time. The Council recognizes the dangerous nature of stalking as well as the strong connections between stalking and domestic violence and between stalking and sexual assault. Therefore, the Council enacts this law to encourage effective intervention by the criminal justice system before stalking escalates into behavior that has even more serious or lethal consequences.

      (b) The Council enacts this stalking statute to permit the criminal justice system to hold stalkers accountable for a wide range of acts, communications, and conduct. The Council recognizes that stalking includes a pattern of following or monitoring the victim, or committing violent or intimidating acts against the victim, regardless of the means.

      § 22-3132. Definitions

      For the purposes of this chapter, the term:

      (1) “Any device” means electronic, mechanical, digital or any other equipment, including: a camera, spycam, computer, spyware, microphone, audio or video recorder, global positioning system, electronic monitoring system, listening device, night-vision goggles, binoculars, telescope, or spyglass.

      (2) “Any means” includes the use of a telephone, mail, delivery service, e-mail, website, or other method of communication or any device.

      (3) “Communicating” means using oral or written language, photographs, pictures, signs, symbols, gestures, or other acts or objects that are intended to convey a message.

      (4) “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling;

      (5) “Financial injury” means the monetary costs, debts, or obligations incurred as a result of the stalking by the specific individual, member of the specific individual's household, a person whose safety is threatened by the stalking, or a person who is financially responsible for the specific individual and includes:

      (A) The costs of replacing or repairing any property that was taken or damaged;

      (B) The costs of clearing the specific individual's name or his or her credit, criminal, or any other official record;

      (C) Medical bills;

      (D) Relocation expenses;

      (E) Lost employment or wages; and

      (F) Attorney's fees.

      (6) “Personal identifying information” shall have the same meaning as provided in § 22-3227.01(3).

      (7) “Specific individual” or “individual” means the victim or alleged victim of stalking.

      (8) “To engage in a course of conduct” means directly or indirectly, or through one or more third persons, in person or by any means, on 2 or more occasions, to:

      (A) Follow, monitor, place under surveillance, threaten, or communicate to or about another individual;

      (B) Interfere with, damage, take, or unlawfully enter an individual's real or personal property or threaten or attempt to do so; or

      (C) Use another individual's personal identifying information.

      § 22-3133. Stalking

      (a) It is unlawful for a person to purposefully engage in a course of conduct directed at a specific individual:

      (1) With the intent to cause that individual to:

      (A) Fear for his or her safety or the safety of another person;

      (B) Feel seriously alarmed, disturbed, or frightened; or

      (C) Suffer emotional distress;

      (2) That the person knows would cause that individual reasonably to:

      (A) Fear for his or her safety or the safety of another person;

      (B) Feel seriously alarmed, disturbed, or frightened; or

      (C) Suffer emotional distress; or

      (3) That the person should have known would cause a reasonable person in the individual's circumstances to:

      (A) Fear for his or her safety or the safety of another person;

      (B) Feel seriously alarmed, disturbed, or frightened; or

      (C) Suffer emotional distress.

      (b) This section does not apply to constitutionally protected activity.

      (c) Where a single act is of a continuing nature, each 24-hour period constitutes a separate occasion.

      (d) The conduct on each of the occasions need not be the same as it is on the others.

      § 22-3134. Penalties.

      § 22-3135. Jurisdiction.

      (a) An offense shall be deemed to be committed in the District of Columbia if the conduct on at least one occasion was initiated in the District of Columbia or had an effect on the specific individual in the District of Columbia.

      (b) A communication shall be deemed to be committed in the District of Columbia if it is made or received in the District of Columbia or, if the specific individual lives in the District of Columbia, it can be electronically accessed in the District of Columbia.

    3. Cases

      1. Richardson v. Easterling, 878 A.2d 1212, 1217 (D.C. 2005).
        • Procedural Posture: Petitioner was denied a CPO in the superior court because the judge determined he had not alleged an intrafamily offense. Petitioner appealed.
        • Law: CPO statute; stalking
        • Facts: Petitioner alleged that his former lover had been spreading false rumors about him (that he was spreading sexually transmitted diseases) and harassing him with phone calls.
        • Outcome: Reversed. While the alleged defamation did not satisfy the predicates for a CPO, the harassing behavior, which included numerous threatening, abusive, and harassing phone calls directly to petitioner constituted stalking, and therefore was sufficient to establish the predicate for a CPO.
    4. Practice Pointers

      • The stalking statute was revised in 2009, and there are few cases interpreting the current version. However, older cases are still instructive.
      • Stalking has, in relevant relationships, been characterized as an intrafamily offense under D.C. law, which may be relevant for establishing other claims (such as for a civil protective order).
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  5. Extortion — D.C. Code § 22-3251

    1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of a WMC victim with the intention of forcing the victim into conduct he or she would not have otherwise performed may be charged with extortion.

    2. Text of Statute(s)

      D.C. Code § 22-3251. Extortion.

      (a) A person commits the offense of extortion if:

      (1) That person obtains or attempts to obtain the property of another with the other's consent which was induced by wrongful use of actual or threatened force or violence or by wrongful threat of economic injury; or

      (2) That person obtains or attempts to obtain property of another with the other's consent which was obtained under color or pretense of official right.

      (b) Any person convicted of extortion shall be fined not more than the amount set forth in § 22-3571.01 or imprisoned for not more than 10 years, or both.

    3. Cases

      1. Battle v. United States, 515 A.2d 1120 (D.C. 1986).
        • Procedural Posture: Defendants were convicted of a variety of offenses related to collecting money for cocaine consigned to another for resale. Defendants appealed.
        • Law: D.C. extortion statute
        • Facts: As relevant here, a group representing people who had consigned a large amount of cocaine for resale, attempted to kidnap one of the purveyors after they were not paid back. After failing in their kidnapping attempt, they attempted to extort him into paying the remaining money with communications that originated in Maryland but were received in Washington D.C.
        • Outcome: Affirmed. The court held that, because the extortion communication terminated in the District of Columbia, D.C. had jurisdiction under the statute.
    4. Practice Pointers

      If any portion of an extortion communication occurs in D.C., the district will likely have jurisdiction under this statute.

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  6. Voyeurism — D.C. Code § 22-3531

    1. Introduction

      Victims should often be able to press charges for voyeurism in situations where WMC victims did know they were being photographed or recorded.

    2. Text of Statute(s)

      § 22-3531. Voyeurism

      (a) For the purposes of this section, the term:

      (1) “Electronic device” means any electronic, mechanical, or digital equipment that captures visual or aural images, including cameras, computers, tape recorders, video recorders, and cellular telephones.

      (2) “Private area” means the naked or undergarment-clad genitals, pubic area, anus, or buttocks, or female breast below the top of the areola.

      (b) Except as provided in subsection (e) of this section, it is unlawful for any person to occupy a hidden observation post or to install or maintain a peephole, mirror, or any electronic device for the purpose of secretly or surreptitiously observing an individual who is:

      (1) Using a bathroom or rest room;

      (2) Totally or partially undressed or changing clothes; or

      (3) Engaging in sexual activity.

      (c)(1) Except as provided in subsection (e) of this section, it is unlawful for a person to electronically record, without the express and informed consent of the individual being recorded, an individual who is:

      (A) Using a bathroom or rest room;

      (B) Totally or partially undressed or changing clothes; or

      (C) Engaging in sexual activity.

      (2) Express and informed consent is only required when the individual engaged in these activities has a reasonable expectation of privacy.

      (d) Except as provided in subsection (e) of this section, it is unlawful for a person to intentionally capture an image of a private area of an individual, under circumstances in which the individual has a reasonable expectation of privacy, without the individual's express and informed consent.

      (e) This section does not prohibit the following:

      (1) Any lawful law enforcement, correctional, or intelligence observation or surveillance;

      (2) Security monitoring in one's own home;

      (3) Security monitoring in any building where there are signs prominently displayed informing persons that the entire premises or designated portions of the premises are under surveillance; or

      (4) Any electronic recording of a medical procedure which is conducted under circumstances where the patient is unable to give consent.

      (f)(1) A person who violates subsection (b), (c), or (d) of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than the amount set forth in § 22-3571.01 or imprisoned for not more than 1 year, or both.

      (2) A person who distributes or disseminates, or attempts to distribute or disseminate, directly or indirectly, by any means, a photograph, film, videotape, audiotape, compact disc, digital video disc, or any other image or series of images or sounds or series of sounds that the person knows or has reason to know were taken in violation of subsection (b), (c), or (d) of this section is guilty of a felony and, upon conviction, shall be fined not more than the amount set forth in § 22-3571.01 or imprisoned for not more than 5 years, or both.

      (g) The Attorney General for the District of Columbia, or his or her assistants, shall prosecute a violation of subsection (b), (c), or (d) of this section for which the penalty is set forth in subsection (f)(1) of this section.

    3. Cases

      There is no relevant case law at this time.

    4. Practice Pointers

      • The statute creates criminal liability for digital recordings and photographs.
      • The statute covers recordings made “without the express and informed consent of the individual being recorded.”
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  7. Criminal Nonconsensual Pornography, D.C. Code § 22-3051

    1. Introduction

      D.C. recently passed a “revenge porn” statute that will likely be relevant in the cases of most WMC victims.

    2. Text of Statute(s)

      § 22-3051. Definitions.

      For the purposes of this chapter, the term:

      (1) “Disclose” means to transfer or exhibit to 5 or fewer persons.

      (2) “Harm” means any injury, whether physical or nonphysical, including psychological, financial, or reputational injury.

      (3) “Internet” means an electronically available platform by which sexual images can be disseminated to a wide audience, including social media, websites, and smartphone applications; provided, that the term “Internet” does not include a text message.

      (4) “Private area” means the genitals, anus, or pubic area of a person, or the nipple of a developed female breast, including the breast of a transgender female.

      (5) “Publish” means to transfer or exhibit to 6 or more persons, or to make available for viewing by uploading to the Internet.

      (6) “Sexual conduct” shall have the same meaning as provided in § 22-3101(5).

      (7) “Sexual image” means a photograph, video, or other visual recording of an unclothed private area or of sexual conduct.

      § 22-3052. Unlawful disclosure.

      (a) It shall be unlawful in the District of Columbia for a person to knowingly disclose one or more sexual images of another identified or identifiable person when:

      (1) The person depicted did not consent to the disclosure of the sexual image;

      (2) There was an agreement or understanding between the person depicted and the person disclosing that the sexual image would not be disclosed; and

      (3) The person disclosed the sexual image with the intent to harm the person depicted or to receive financial gain.

      (b) A person who violates this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than the amount set forth in § 22-3571.01, imprisoned for not more than 180 days, or both.

      § 22-3053. First-degree unlawful publication.

      (a) It shall be unlawful in the District of Columbia for a person to knowingly publish one or more sexual images of another identified or identifiable person when:

      (1) The person depicted did not consent to the disclosure or publication of the sexual image;

      (2) There was an agreement or understanding between the person depicted and the person publishing that that the sexual image would not be disclosed or published; and

      (3) The person published the sexual image with the intent to harm the person depicted or to receive financial gain.

      (b) A person who violates this section shall be guilty of a felony and, upon conviction, shall be fined not more than the amount set forth in § 22-3571.01, imprisoned for not more than 3 years, or both.

      § 22-3054. Second degree unlawful publication.

      (a) It shall be unlawful in the District of Columbia for a person to knowingly publish one or more sexual images of another identified or identifiable person obtained from a third party or other source when:

      (1) The person depicted did not consent to the disclosure or publication of the sexual image; and

      (2) The person published the sexual image with conscious disregard that the sexual image was obtained as a result of a previous disclosure or publication of the sexual image made with an intent to harm the person depicted or to receive financial gain.

      (b) A person who violates this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than the amount set forth in § 22-3571.01, imprisoned for not more than 180 days, or both.

      § 22-3055. Exclusions.

      (a) This chapter shall not apply to:

      (1) Constitutionally protected activity; or

      (2) A person disclosing or publishing a sexual image that resulted from the voluntary exposure of the person depicted in a public or commercial setting.

      (b) Nothing in this chapter shall be construed to impose liability on an interactive computer service, as defined in section 230(e)(2) of the Communications Act of 1934, approved February 8, 1996 (110 Stat. 139; 47 U.S.C. § 230(f)(2)), for content provided by another person.

      § 22-3056. Affirmative defenses.

      It shall be an affirmative defense to a violation of § 22-3052, § 22-3053, or § 22-3054 if the disclosure or publication of a sexual image is made in the public interest, including the reporting of unlawful conduct, the lawful and common practices of law enforcement, or legal proceedings.

      § 22-3057. Jurisdiction.

      A violation of § 22-3052, § 22-3053, or § 22-3054 shall be deemed to be committed in the District of Columbia if any part of the violation takes place in the District of Columbia, including when either the person depicted or the person who disclosed or published the sexual image was a resident of, or located in, the District of Columbia at the time that the sexual image was made, disclosed, or published.

    3. Cases

      No relevant cases at this time.

    4. Practice Pointers

      • The statute imposes much more severe penalties when the images are “published” to be viewed by 6 or more people.
      • The statute also imposes criminal liability on third-party publishers when the victim did not consent to publication and the third party acts with conscious disregard that the image may have originally been disclosed with an intent to harm the victim or for financial gain.
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