The State College Police Department was notified in January of 2015 that members of the Kappa Delta Rho fraternity at Penn State had posted photos of drunk girls in compromising positions on a private Facebook page. A former member of the fraternity brought the matter to the attention of police, most likely to obtain favorable consideration from the Centre County District Attorney's Office in the former student's pending criminal case for charges of Resisting Arrest and Escape.
Pennsylvania Invasion of Privacy and Unlawful Dissemination of Intimate Images
The photos that were posted on Facebook allegedly depict women that are nude or partially nude. I believe that the photos could implicate two criminal laws in Pennsylvania, Invasion of Privacy and Unlawful Dissemination of Intimate Images. Invasion of Privacy prohibits a person from viewing, photographing, videotaping, or filming another person in a state of full or partial nudity without the person's consent if the person was in a place where he or she would have a reasonable expectation of privacy. The law would also prohibit the transfer or transmittal of such an image on social media or the Internet in general.
The Unlawful Dissemination charge prohibits a person from disseminating a visual depiction of a current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct with the intent to harass, annoy, or alarm that person. The Unlawful Dissemination statute, commonly called a Revenge Porn law, basically prohibits a person from posting a nude photo of a former boyfriend or girlfriend.
The primary issue here is consent. Both laws would require the prosecution to present evidence that the women in the photos did not consent to the photos being taken originally or being posted online. One of the problems with bringing charges and prosecuting the alleged criminal violations is that the victims may not wish to further expose themselves by cooperating with the prosecution. If charges are filed, the photos are likely to be shown in open court, meaning at the preliminary hearing, during pretrial proceedings, and at trial, and those court proceedings are open to the public. The victims may prefer to "let sleeping dogs lie" and try to keep the photos from being publicly displayed by asking the police and prosecutors to forgo prosecution in the case.
Proof Problems with Penn State Fraternity Case
Another issue with regard to bringing charges will be identifying the actual perpetrator of the crimes, meaning who actually took the photo for an Invasion of Privacy charge or who posted the photo for an Unlawful Dissemination charge. Can the police forensically review the photos and link them to a particular cell phone or camera that was used to take the photo? If not, how can the police prove which person took the photo without consent to justify an Invasion of Privacy charge? With the Unlawful Dissemination photo, the police would need to figure out which particular person posted the photo and also have evidence that the photo was posted by a former sexual or intimate partner.
I am sure that almost everyone agrees that the posting of photos that depict young women who are nude or partially nude while they are probably extremely intoxicated is reprehensible and should lead to someone being punished. However, I believe that the State College police and the Centre County District Attorney's Office may have evidentiary problems in filing charges in this case. The fact that the victims were extremely intoxicated and probably have little to no recollection of what happened makes a prosecution difficult. If charges are not filed, I suspect that some people will claim that this is yet another cover up at Penn State. To me, given the publicity, this is clearly not a cover up issue. Instead, I know that the police have diligently investigated the case and would like to pursue charges, but given the foreseeable evidentiary issues and the possible reluctance of witnesses to cooperate, I would understand that no charges may be filed based upon this incident.