Video of Nude Washington Football Cheerleaders Potentially A Revenge Porn Crime
Amy Dash
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One of the most obvious and completely overlooked angles to the scandalous Washington Football Team fallout, is the potential criminal nature of the video of the naked cheerleaders that was covertly filmed and distributed among employees of the organization. While it’s still unclear whether team owner Daniel Snyder instructed someone to film the cheerleaders as they changed outfits during a photo shoot or whether someone else within the organization made that directive, the actual filming and distribution of nude images without the cheerleaders consent is likely a crime.
Rumors are that the video contained images of the cheerleaders’ naked body parts, including topless images, and that the cheerleaders had no clue they were being filmed. Reminiscent of the Erin Andrews saga, where the Fox broadcaster was filmed by a stranger through a peephole in her hotel room, without her consent, this outrageous action by someone within the football organization should result in the perpetrators being held accountable. This means there could be potential criminal and civil liability for not only the person who filmed the cheerleaders nude but also the person who ordered it to be done and possibly the people who assisted in the distribution of these naked images, who are potential accomplices to this alleged crime.
In Washington, D.C. and many other states across the country, the publication and dissemination of sexual images against a person’s will is not only an invasion of privacy but a criminal offense that often falls under Revenge Porn laws. While most people may think of revenge porn and contextualize it as a crime by an ex or former spouse who releases private sex images or videos as a way of getting back at someone for a failed relationship, that is not always the case. There are in fact cases of revenge porn crimes where the people involved do not even know one another. In 2014, D.C.’s Criminalization of Non-Consensual Pornography Act defined “non-consensual pornography” as the “forced transformation of a private sexual image into sexual entertainment for strangers. It is also the distribution of a private sexual image to cause harm to the person depicted.”
Non-consensual pornography “occurs when an actor shares a sexually explicit photograph or video of another person without that person’s permission, with another audience of one or more individuals, whether by electronic means or otherwise, or potentially the whole world by posting the images or video to the Internet.”
The unlawful disclosure of a sex image is a misdemeanor punishable by up to 180 days in jail or a fine. Prosecutors have to prove: the defendant knowingly disclosed sexual images of another person, the person depicted was identified or identifiable, the person depicted did not consent and the defendant disclosed the sexual image with the intent to harm the person or to receive financial gain.
Theoretically, if someone was filming and distributing these images within the organization at the direction of one of their superiors, it could be argued they were doing so for financial gain or in other words, to keep their job or gain favor with their employer which is financially motivated. The unlawful disclosure of a sex image is a charge for dissemination of the image to five or fewer people.
However, if the sexual images are shared with six or more people in the organization by publishing it to the internet, then it becomes a first-degree unlawful publication of sexual images offense. This is a felony, punishable by up to three years in prison and a larger fine. The elements necessary to prove this felony are virtually identical to the ones described above.
Notably, if a third party possesses the sexual images, such as coaches or other employees of Washington’s team or even the owner, Dan Snyder, and passes that along, they could potentially be charged with second-degree unlawful publication of a sexual image. This is a misdemeanor punishable by up to 180 days in jail and a fine.
To prove this offense, prosecutors must show the person published the image, which is easy to track on email, the person in the image was identified or identifiable, the person did not consent to the disclosure and the defendant published or shared it with a conscious disregard that the sexual image was obtained as a result of a previous disclosure or publication made with the intent to harm the person or receive financial gain.
“Private area” is defined as “genitals, anus, or pubic area of a person, or the nipple of a developed breast, including the breast of a transgender female.” “Sexual image” means “a photograph, video, or other visual recording of an unclothed private area or of sexual conduct.”
While there have been reports that some of the cheerleaders signed a confidential settlement which included a non-disclosure agreement that could potentially include waivers of liability. This would only prevent civil actions but would not prevent a criminal investigation or criminal charges.
In fact, by and large, courts have found that it is unlawful to sign an NDA that prevents someone from reporting a crime. It runs contrary to public policy to be prevented from not only reporting a crime but participating in a criminal investigation, including testifying.
As the public renews calls for the NFL to release the 650,000 emails amassed and reviewed as part of the workplace conduct investigation into Washington’s workplace culture, it is important to note that any sex assault or harassment or revenge porn electronic crimes that may have taken place cannot be arbitrated or negotiated away.
While the NFL has come out and said it will not release the emails, apart from the ones that exposed former Raiders coach Jon Gruden, questions remain about its willingness to cooperate in a potential criminal investigation, if one commences. The emails would be relevant to find out who ordered the filming of cheerleaders private regions, who participated in its distribution and whether there was a larger conspiracy to obtain and indulge in these private sexual images within the organization.
If criminal conduct occurred, the NFL should cooperate in holding those accountable who have traumatized, humiliated and violated the cheerleaders privacy. No-one deserves that type of non-consensual exposure.
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