Today, we continue with Senate Bill 1257, which criminalized the nonconsensual dissemination of sexual images, also known as “revenge porn.”
This year, Governor Fallin signed 394 pieces of legislation. I was the primary Senate author of 11 of those bills. Over 11 days, I am telling the story of each bill – where it came from, how it progressed through the Legislature, and what it means to the people of Oklahoma. This is in keeping with my longstanding support of transparency, and hopefully you’ll find this exercise insightful.
Revenge porn usually occurs when someone shares intimate images with a trusted partner, the relationship ends, and then that partner shares the images on the Internet in revenge. Since there is no demand being made in return, existing blackmail laws are not adequate. And since the images were initially consensual, though their dissemination was not, Peeping Tom laws don’t really work either. Revenge porn is a purely destructive act that should be a crime, but it wasn’t in Oklahoma. Addressing it required legislative action.
As I’ve explained in previous episodes of this series, ideas come from everywhere. In this case, back in August of 2015, I received an e-mail from Jan Peery, head of the YWCA Oklahoma City, which serves as our community’s primary service provider to victims of domestic violence. My wife Rachel was once a victim’s advocate for the D.C. Coalition Against Domestic Violence and the issue has always been important to me. Two years ago, I had carried the legislation with Kay Floyd that required law enforcement to ask questions of domestic violence victims that could save their life. Jan is a friend, and she knew I would be interested in the topic she e-mailed me about, which was the idea of criminalizing “revenge porn” in Oklahoma.
My first reaction to Jan’s suggestion was this was a topic that could easily get graphic. I was immediately concerned that my conservative colleagues may just rebel against the whole thing due to its explicit nature. But at the same time, I recognized this was important, it was prevalent, it targeted women disproportionately, it was often an aspect of a domestic violence situation, and it was a modern crime that our statutes had simply not kept pace with.
So, I filed the bill as SB 1257, but I worked with Senate staff to amend a version of the concept from another state to be a little less sexually explicit in its language.
This was an example of an outside organization proposing an idea, but the YWCA doesn’t have the resources for a lobbyist, so I was on my own. But pretty soon, I got the help of a different kind of lobbyist: the media.
Days before the 2016 session began, Maureen Wurtz of KTUL – Tulsa’s Channel 8 e-mailed me. She explained that she had been working on a story about revenge porn. This included candid conversations with a courageous victim – Heaven Taay. Maureen had come across my bill and wanted to talk to me about it. She did and ended up doing a great story about it. Her interest and the stories she continued to produce throughout the session gave me ammo I needed. But first, I ran into a roadblock.
The bill had been assigned to two committees, meaning that it had been “double-assigned,” in the language of the Legislature. The committees were Judiciary, because it created a crime, and Appropriations, because when you create a crime, you theoretically cost the state money. Judiciary would have to hear it first, but the chair didn’t want to. However, he wasn’t bitterly opposed (he later voted for it repeatedly, in fact), so he allowed me to ask the Floor Leader to un-assign it from Judiciary, and that request was granted. In exchange, he asked that I keep title off throughout Senate consideration. This would have the effect of ensuring that the bill came back to the Senate for one more vote. I don’t want to act like making an arrangement like this and getting a bill un-assigned from a committee is routine, it isn’t. I’m not sure I’ve ever done a maneuver quite that like that before, but this was a bill worth expending political capital on. With that hurdle conquered, I just had to get SB 1257 through Appropriations.
In Appropriations, I ran into more trouble than I expected. As I explained in previous episodes, the titles of all bills are struck in Appropriations, so that was done immediately. But I still got some challenges from other senators. One senator in particular expressed concerns that this was draconian. The clear subtext was “boys will be boys.” Obviously, if I agreed with that attitude, I wouldn’t have been running the bill. There was also a subtext, often present in regards to this bill, that the victim shouldn’t have allowed her trusted partner to have the pictures in the first place. To me, this was reminiscent of the way domestic violence victims are sometimes viewed – “If he’s beating you, why don’t you leave him?”
Nevertheless, SB 1257 had something else going for it. At the end of the day, it’s a hard bill to publicly vote against. And so only one member of the Appropriations Committee did.
The power of having one of those untouchable bills was a good thing in this case, but you also don’t want to abuse that power. You still want to make sure it’s a responsible bill. And so I took the comments made in committee, and some other thoughts I had developed and went back to work.
The senator who opposed the bill came to visit with me to try and make his case for essentially dropping the whole thing. I didn’t find his arguments compelling.
Meanwhile, representatives of the Motion Picture Association of America had approached me seeking intent language in the bill, meaning that the perpetrator would have to exhibit some intent to harm the victim. I did a little investigation of that issue online to see if it had been discussed in other states, and it had. I even sought out the counsel of a state senator friend of mine in Wisconsin, Leah Papachristou Vukmir, who I had discovered had authored revenge porn legislation there. I ultimately decided that though intent language added a burden to prosecution, it was probably appropriate to include some, though I made it very broad.
So, I filed a floor substitute, which I’ve explained in previous episodes is just a whole new version of the bill for consideration on the Senate floor. Theoretically, you could file a bunch of amendments, but it just gets hard to understand what you’re doing to the bill when you have a list of disconnected phrases presented on a separate piece of paper. It is simply more comprehensible to present a “floor sub” (in the legislative lingo).
On the floor, there were no serious issues. I adopted the floor sub and sent it to the House on a 42-2 vote.
In the House, I had secured Rep John Paul Jordan as the House author. I immediately got Maureen from KTUL in touch with him. She brought Heaven to the Capitol, and on camera, Heaven met with various House Representatives that Rep. Jordan introduced. That kind of media influence can be very helpful in creating the best environment for success around your bill.
Meanwhile, we got the word that the Governor had an issue. Sometimes bills are based on a good idea, but the micro idea comes into conflict with a macro trend. And the macro trend we faced was that the Governor was trying to push criminal justice reform and soften our state’s prison requirements. Creating a new felony, as SB 1257 did, ran right into that principle. So, Rep. Jordan did what we felt we had to do to keep it moving and ultimately to keep it from getting vetoed. He took out the felony for a second offense. Now, it would just be a misdemeanor for a second offense (it was already just a misdemeanor for a first offense). He also tinkered with the intent language and added a concept that the judge could order the images removed if that’s still within the power of the perpetrator.
With those amendments, he passed committee unanimously. He also restored the title of the bill. Now it was on to the House floor. I had explained in previous episodes that once you have passed Senate committee, it is the custom that a floor hearing is generally yours if you want it. This is not the case in the House. There, it’s a struggle from beginning to end. And Rep. Jordan let me know in early April that SB 1257 was being denied a floor hearing because it was believed the Governor would veto it. I felt pretty confident that was not the case, especially after we removed the felony, so I reached out to senior staff in the Governor’s office. They confirmed they would not veto it, and they communicated that to the Speaker’s office. And we were back in business. On April 19th, it passed the House 81-0.
It came back to me for one more vote, because it had been amended and title had been restored. I was happy with the product, and so there was no need to take SB 1257 to conference. All I needed to do was accept the House amendments and send it to the Governor’s desk. On April 28th, I did that and the bill passed 39-0. The Governor signed it May 5th. It takes effect November 1st.
The most meaningful laws I have authored are those that you know will really make a difference in people’s lives. I really have to believe that criminalizing revenge porn will decrease its likelihood of happening. Of course it will still occur, just as murders still occur, but it will occur less because there are consequences. And when it does occur, victims will have a recourse. In a state where men kill women more than they do in 44 other states, this is important progress.
Tomorrow, we’ll continue with another episode of #11BillsIn11Days.