Disclosure of Sexually Explicit Images Without Consent

Reporter’s Note

Courts should exercise caution with respect to the third element, which contains five distinct types of intent. In cases where the State has not made an election, a unanimity instruction may be required. See State v. Nicholas, 2016 VT 92, ¶¶ 13–33. For a model unanimity instruction, see CR04-081.

The fourth element of the model instruction reflects the Supreme Court’s decision in State v. Van Buren, 2018 VT 95, ¶¶ 97–103, holding that the State must prove that there was a reasonable expectation of privacy in the image(s). Although the statute’s structure suggests that the reasonable-expectation-of-privacy requirement is a defense, the Court concluded that it is actually an “essential ingredient which constitutes the offense” as well as “central to the statute’s constitutionality and purpose” and, therefore, an “element of the crime.” Id. ¶¶ 98–101 (quotation and alterations omitted).

Note that the reasonable-expectation-of-privacy standard is “purely objective,” and this determination accordingly “should be based on what a reasonable person would think, not what the person depicted thought. Id. ¶ 105 (citing State v. Albarelli, 2011 VT 24, ¶ 14, 189 Vt. 293).