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Law School Case Brief

State v. VanBuren - 2018 VT 95


Given the legislature's clear intent to protect peoples' reasonable expectations of privacy in intimate images of them, and to exclude from Vt. Stat. Ann. tit. 13, § 2606's reach those images in which a person has no such reasonable expectation, it seems clear that the legislature intends its exclusion to apply to images the person has distributed to the public, as well as those recorded in public. This construction also ensures that the scope of the statute is no broader than necessary to advance the State's interest in protecting reasonable expectations of privacy with respect to intimate images.


In late 2015, Rebekah S. VanBuren was charged by information with violating 13 V.S.A. § 2606(b)(1). In support of the charge, the State submitted an affidavit from a police officer and a sworn statement from complainant, which was incorporated into the officer's affidavit by reference. Complainant contacted police after she discovered that someone had posted naked pictures of her on a Facebook account belonging to Anthony Coon and “tagged” her in the picture. Complainant called Mr. Coon and left a message asking that the pictures be deleted. Shortly thereafter, VanBuren called complainant back on Mr. Coon's phone; she called complainant a “moraless pig” and told her that she was going to contact complainant's employer, a child-care facility. When complainant asked VanBuren to remove the pictures, VanBuren responded that she was going to ruin complainant and get revenge. Complainant told police that she had taken naked pictures of herself and sent them to Mr. Coon through Facebook Messenger. She advised that the pictures had been sent privately so that no one else could view them. VanBuren admitted to the officer that she saw complainant's pictures on Mr. Coon's Facebook account and that she posted them on Facebook using Mr. Coon's account. This is a petition for extraordinary relief from State challenging dismissal of charge for nonconsensual disclosure of images of identifiable nude person.


Is Vermont's statute banning disclosure of nonconsensual pornography unconstitutional?




The Court held that because Vt. Stat. Ann. tit. 13, § 2606, banning disclosure of nonconsensual pornography or "revenge porn," was narrowly tailored to advance the State's interests, did not penalize more speech than necessary to accomplish its aim, and did not risk chilling protected speech on matters of public concern, it did not violate U.S. Const. amend. I on its face. Dismissal of the charge was appropriate because the State had not established that complainant, who sent nude pictures of herself to a man in which defendant had a romantic interest, had a reasonable expectation of privacy in the images, as the State had stipulated that the complainant and the recipient were not in a relationship at the time the complainant sent the photos, and no evidence in the record showed they had any kind of relationship engendering a reasonable expectation of privacy.

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