Alaska’s laws permit prosecution against perpetrators who harass victims by publishing or distributing sexually explicit material to harass or without the victim’s consent. In 2006, Alaska was one of the first states to enact a statute that criminalizes harassment via electronic publication or distribution of images that show nudity and/or sexual act.1 Harassment in the second degree explicitly provides for the prosecution of sexually explicit material with the “intent to harass or annoy another person.” Indecent viewing or photography criminalizes the unconsented to “produc[tion]” of a sexually explicit image.
Text of Statute(s)
AS § 11.61.120 - Harassment in the second degree
(a) A person commits the crime of harassment in the second degree if, with intent to harass or annoy another person, that person
(1) insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response;
(2) telephones another and fails to terminate the connection with intent to impair the ability of that person to place or receive telephone calls;
(3) makes repeated telephone calls at extremely inconvenient hours;
(4) makes an anonymous or obscene telephone call, an obscene electronic communication, or a telephone call or electronic communication that threatens physical injury or sexual contact;
(5) subjects another person to offensive physical contact;
(6) except as provided in AS 11.61.116, publishes or distributes electronic or printed photographs, pictures, or films that show the genitals, anus, or female breast of the other person or show that person engaged in a sexual act; or
(7) repeatedly sends or publishes an electronic communication that insults, taunts, challenges, or intimidates a person under 18 years of age in a manner that places the person in reasonable fear of physical injury.
(b) Harassment in the second degree is a class B misdemeanor.
AS § 11.61.123 - Indecent viewing or photography
(a) A person commits the crime of indecent viewing or photography if, in the state, the person knowingly views, or produces a picture of, the private exposure of the genitals, anus, or female breast of another person and the view or production is without the knowledge or consent of
(1) the parent or guardian of the person viewed, or who is shown in the picture, if the person who is viewed or shown is under 16 years of age; and
(2) the person viewed or shown in the picture, if the person viewed or shown is at least 13 years of age.
(b) Each viewing of a person, and each production of a picture of a person, whose genitals, anus, or female breast are viewed or are shown in a picture constitutes a separate violation of this section.
(c) This section does not apply to viewing or photography conducted by a law enforcement agency for a law enforcement purpose.
(d) In a prosecution under this section, it is an affirmative defense that the viewing or photography was conducted as a security surveillance system, notice of the viewing or photography was posted, and any viewing or use of pictures produced is done only in the interest of crime prevention or prosecution.
(e) In this section,
(1) “picture” means a film, photograph, negative, slide, book, newspaper, or magazine, whether in print, electronic, magnetic, or digital format; and
(2) “private exposure” means that a person has exposed the person's body or part of the body in a place, and under circumstances, that the person reasonably believed would not result in the person's body or body parts being (A) viewed by the defendant; or (B) produced in a picture; “private exposure” does not include the exposure of a person's body or body parts in a law enforcement facility, correctional facility, designated treatment facility, or a juvenile detention facility; in this paragraph, “correctional facility” has the meaning given in AS 33.30.901, “designated treatment facility” has the meaning given in AS 47.30.915, and “juvenile detention facility” has the meaning given in AS 47.12.990.
(f) Indecent viewing or photography is a
(1) class C felony if the person viewed or shown in a picture was, at the time of the viewing or production of the picture, a minor;
(2) class A misdemeanor if the person viewed or shown in a picture was, at the time of the viewing or production of the picture, an adult.
AS § 11.61.120 has been heralded as Alaska’s “Revenge Porn” statute. Although there are no judicial opinions applying the statute in the “revenge porn” context, media reports suggest the statute is being used to prosecute perpetrators.2
With regard to the provision prohibiting threatening messages or calls (11.61.120(a)(4)), a defendant may argue that the conduct is protected speech, but Alaska law is clear that “the government need not prove that it was the speaker’s subjective intent to carry out the threat. Rather it is sufficient if the speaker utters or transmits a communication with knowledge that the communication will be viewed as a threat.”3
Specifically, in State v. Borowski4, which dealt with an online threat to kill a local assemblyman, the court held that the government need not prove the defendant intended to carry through with an act of physical violence.5 Reversing the district court’s dismissal, the appellate court clarified that Alaska’s harassment statute was enacted to “penalize the act of communicating with another person in a way that the speaker knows will be understood as a threat to inflict . . . harm, if the speaker’s intent in making this communication is to harass or annoy another person.”6 Second-degree harassment involving may be proved by establishing: (1) the defendant knowingly made an electronic communication, (2) that this electronic communication threatened physical injury, (3) that the defendant knew that the communication would be viewed as a threat, and (4) that the defendant made the communication with the intent of harassing or annoying another person.7
2006 Alaska Laws Ch. 112 (H.B. 326). ↩
See, e.g., Jerzy Shedlock, Anchorage man charged with harassment after creating fake Facebook accounts ADN.com (Jan. 4, 2014, updated Sept. 28, 2016)https://www.adn.com/crime-justice/article/anchorage-man-charged-hundreds-harassment-counts-creating-fake-facebook-accounts/2014/01/05/. ↩
State v. Borowski, 378 P.3d 409, 412 (Alaska App. July 22, 2016). ↩
Id. at 409. ↩
378 P.3d at 413. ↩
Id. at 412-13. ↩
Id. at 413. ↩