Rep. Joe Barton’s nude selfie is eliciting mixed reactions, ranging from those who view him as a victim to skeptics who see a possible lawbreaker akin to ex-Rep. Anthony Weiner, who resigned after tweeting a photo of his crotch.
Some anti-revenge porn activists contacted by the Washington Examiner expressed sympathy for Barton and said the photo's distributor may be in legal hot water, while others said an anonymous claim he harassed someone may give the Texas Republican a cold shower. "Revenge porn" describes the nonconsensual distribution of sexually explicit images, sometimes after a romantic breakup.
Barton apologized Wednesday after the image was posted to Twitter by an unknown person who claimed he “harassed” them. Barton suggested the image — which TMZ published with his genitals censored — emerged from a “consensual” relationship.
"While separated from my second wife, prior to the divorce, I had sexual relationships with other mature adult women. Each was consensual. Those relationships have ended," he said. “I am sorry I did not use better judgment during those days. I am sorry that I let my constituents down."
Bekah Wells of Women Against Revenge Porn, speaking under an initial impression the congressman was victimized, said that "Joe Barton has nothing to be ashamed of. Leave him alone."
"I don’t care if his penis has a Bob Dylan song tattooed on it. It’s not newsworthy," Wells said. "The media needs to stop with this stuff. And I hope Joe sues the shit out of TMZ."
Charlotte Laws, an activist nicknamed "the Erin Brockovich of revenge porn," said she was disappointed to see Barton's apology.
“Representative Joe Barton is apologizing for being a victim,” Laws said. “This sends the wrong message: that revenge porn is a victim’s fault. It is not. It is the perpetrator’s fault.”
“Barton’s apology obviously stems from his reelection bid and his reputation as a ‘family values’ politician, but he should make it clear that the person who distributed the photo is the actual culprit,” said Laws, whose daughter was victimized by hackers.
“TMZ and other websites should not repost the photo,” she added. “Barton is entitled to have a private life and to exchange compromising photos with a girlfriend if he and the woman so chooses.”
It was later reported that Barton had threatened to contact the Capitol Police if the explicit material was ever made public in this fashion.
Laws said it’s unclear who owns the copyright to the image, and that if Barton, as the photographer, owns its rights, then it may not be legal to repost it.
Over the past few years, a majority of states have passed legislation to criminalize the nonconsensual distribution of nude photos, and it’s unclear if the photo violates Texas’ law against so-called revenge porn, which often is maliciously shared by jilted exes and hackers.
University of Miami law professor Mary Anne Franks, an architect of state and federal legislation against revenge porn, said she had yet to draw firm conclusions, but it's possible that Barton himself may be the criminal, not the person who shared the image.
“Rep. Barton may not have had a reasonable expectation of privacy in the image and may in fact have engaged in unlawful behavior in sending the image,” she said.
“Sending an unsolicited, explicit image of oneself to another person is a kind of indecent exposure,” she said. “It could be argued that a person who does this has no more expectation of privacy than a person dropping his pants in front of a subway passenger.”
“What is more,” Franks added, “if these photos were not only unsolicited but unwanted, sending them may constitute civil or criminal harassment.”
TMZ and other media outlets, Franks said, may not run afoul of state revenge porn laws in any case because most laws “are quite narrowly drafted to apply only to actual depictions of intimate body parts or sexual activity.”
Danielle Citron, an anti-revenge porn campaigner and University of Maryland law professor, noted that with Barton’s alleged photo recipient unknown, it’s hard to tell what legal conclusions can be drawn.
“Key is that the recipient says the photo was unwanted,” Citron said. “Indeed sending someone nude photos, if they don’t want to receive them, could amount to harassment if sent repeatedly.”
“His apology seems appropriate in that context though it does not absolve it,” she said. “This context is newsworthy, though I am glad the genitals are blocked out. To understand the import of this readers don’t need to see his genitals.”
A fifth activist, March Against Revenge Porn founder Leah Juliett, said Barton may be both perp and victim.
"Rep. Barton is certainly a victim of revenge porn, although the details of this case are slim at this moment," she said. "If Rep. Barton engaged in sexual harassment or assault, he should absolutely be held accountable. In the same vein, whomever released nude photos of Rep. Barton should be held accountable for nonconsensual image sharing, in order to set a precedent that revenge porn is never tolerated. "
A spokesman for Barton did not immediately respond to a request for comment.
If Barton is the victim of revenge porn, he would not be the first in Congress. Virgin Islands Del. Stacey Plaskett, a Democrat, had nude images of herself and her husband distributed online after giving her cellphone password to a staffer, who took the device to the Apple store for repairs in March 2016. That staffer, Juan McCullum, is being prosecuted for alleged cyberstalking.
There is not currently a federal law against distributing revenge porn, though legislation has been authored by Rep. Jackie Speier, D-Calif. Skeptics express concern about the effects of such a law on the Internet ecosystem and point out the foreign websites, some of which blackmail victims, would be untouched by U.S. law.