Judge to weigh ‘revenge porn’ case dismissal

By

Patrick Liebrecht of Colchester is pictured in Chittenden County Criminal Court on Monday. (Photo by Courtney Lamdin)

Patrick Liebrecht of Colchester is pictured in Chittenden County Criminal Court on Monday. (Photo by Courtney Lamdin)

A Superior Court judge heard arguments Monday on a motion to dismiss a case based on Vermont’s so-called revenge porn law.

Judge Dennis Pearson will also consider suppressing statements the defendant, 57-year-old Patrick Liebrecht of Colchester, made to police. Liebrecht says the investigating officer didn’t read his Miranda rights during interrogation.

A former candidate for the Vermont House, Liebrecht was charged with disclosing sexually explicit images of his ex-girlfriend last summer without her consent. The act, known as revenge or nonconsensual porn, was criminalized as a misdemeanor in 2015.

The photo in question shows Liebrecht’s ex, topless and drinking a glass of wine, which police say Liebrecht posted on a Facebook comment thread. The picture was taken consensually during the couple’s on-again, off-again eight-year relationship with the condition he keep it private, an affidavit says.

In his dismissal motion filed last November, Liebrecht’s attorney James Murdoch argued the revenge porn statute is unconstitutional because it abridges freedom of speech. In response, the state argued revenge porn isn’t protected speech because it’s obscene and violates victims’ privacy.

On Monday, Pearson heard testimony from Vermont assistant attorney general Benjamin Battles, who said a similar case is pending in the Vermont Supreme Court.

That appeal seeks to overturn a Bennington County Superior Court judge’s ruling in favor of the defendant, who claimed free-speech infringement in the first test of Vermont’s law.

Earlier this month, the Cyber Civil Rights Initiative and Vermont Network Against Domestic and Sexual Violence filed an amicus brief that echoes many of the points raised in the state’s response to Liebrecht’s motion to dismiss.

Both argue the statute is constitutional because it protects the right to privacy without infringing on freedom of speech.

The state’s filing defines revenge porn as obscenity, one of several categories the U.S. Supreme Court has upheld as unprotected speech. Determining obscenity uses the three-part Miller test, which Liebrecht argued doesn’t cover revenge porn.

The state disagreed, saying the average Vermonter would say nude images elicit an erotic response, evidenced by Americans’ spending billions on the porn industry every year.

Furthermore, the state argued, sharing photos without consent only proves revenge porn appeals to a person’s prurient, or morbid, interest in sex, as required by Miller. The court must consider that, despite how nudity itself isn’t obscene, the state says.

Liebrecht has argued the photo in question isn’t nude since it doesn’t show the woman’s genitals. In court, Murdoch reiterated his client’s view that the photo was akin to any featured in National Geographic.

“Come on, that’s so 1960s,” Pearson interrupted.

“Well, some people are stuck back there,” Murdoch responded.

“This is a picture of someone,” he continued. “Her genitals are not exposed. It could look like an ad for a cheap white wine company, I don’t know. That’s something the court has to grapple with.”

Battles countered this, saying statutes define nudity more than Murdoch suggested.

“What elevates this to the level of obscenity is the violation of privacy and consent,” he said.

The state’s motion furthered this point, saying Vermont’s law “restricts no more speech than is necessary” to protect privacy in the digital age where “nonconsensual pornography [can] be disseminated worldwide at the push of a button.”

Battles said victims of revenge porn suffer greatly, some even committing suicide. The amicus brief noted victims have been extorted, harassed and fired from employment once their images were published.

The brief cites a study that estimates 10 million Americans were subjected to or threatened with revenge porn in 2016. It says more than 30 states have enacted laws like Vermont’s to protect sexual privacy.

The state says Vermont’s statute shouldn’t be deemed overbroad unless its “unconstitutional applications” outnumber permissible ones.

Pearson also heard testimony on Liebrecht’s motion to suppress statements he gave to investigating Officer Jeremy Wyskiel, recognizing the motion could become moot if the case is dismissed.

Colchester Officer Jeremy Wyskiel, the investigating officer for the revenge porn case, is pictured in court on Monday morning. Defendant Patrick Liebrecht says Wyskiel didn't Mirandize him in interrogation. (Photo by Courtney Lamdin)

Colchester Officer Jeremy Wyskiel, the investigating officer for the revenge porn case, is pictured in court on Monday morning. Defendant Patrick Liebrecht says Wyskiel didn’t Mirandize him in interrogation. (Photo by Courtney Lamdin)

Through questioning, the state attempted to show Liebrecht wasn’t in custody, despite Wyskiel’s testimony that he didn’t Mirandize Liebrecht or expressly tell him he was free to go at any time.

Wyskiel said nothing impeded Liebrecht from leaving the interview room, which was left open, and that he told Liebrecht he could use the bathroom down the hall if needed.

In cross-examination, Murdoch asked if Colchester police have an interview recording protocol; Wyskiel said they do not, and although he once had a recorder, it broke early on in his career there and was never replaced.

He also said Colchester officers aren’t issued body cameras.

Before closing the hearing, Pearson noted it could be several months before the Bennington case – which could set legal precedent – is decided. Battles expects it to be argued in March.