New Tort Law in Virginia Redressing the Nonconsensual Creation and Dissemination of Private Images

More than ever, courts are grappling with the digital age and its unique ability to abet sexual harassment.  Many State legislators have begun providing protections strengthening human principles such as consent, bodily autonomy, and privacy in and evolving area, colloquially referred to as “revenge porn”.  In 2017, the Virginia legislature adopted Virginia Code § 8.01-40.4, providing a civil remedy for those injured by the conduct criminalized under Virginia Code §§ 18.2-386.1 and 18.2-386.2 - the unlawful creation or dissemination of explicit images of another person without their consent.  This civil remedy is available to plaintiffs regardless of whether the defendant has been charged with or convicted of criminal violations of the conduct, thus allowing plaintiffs to seek compensatory and punitive damages, attorney fees and costs, as well as equitable relief.  It remains scarily difficult to obtain a restraining order or injunction pertaining to personal images as legislation lags to keep up with the injuries that the internet created.

Statute of Limitations

The civil remedy mentioned above now entitles victims to recover monetary damages regardless of whether the defendant was criminally charged.  Situations previously time-barred because the violations were not discovered until years after the dissemination of the images are now viable causes of action in Virginia courts. The civil cause of action is subject to a two-year statute of limitations, which begins from the later of the date of the last violation, the victim reaching the age of 18, or the discovery of the prohibited conduct, thus allowing vastly more time than the limitations period for misdemeanors, which was only one year from the date of publication.

 Virginia courts have interpreted and applied these statutes, providing clarity on legislative intent regarding consent, privacy, and the specific language of the statutes. Cases arising under these statutes involve scenarios where individuals in relationships consensually share revealing photos, only for one of those parties to illicitly disseminate those images without consent after the relationship ends.  There are many unexpected situations, such as the unsolicited receipt and subsequent forwarding of explicit images, that can lead to liability, highlighting the importance of educating individuals, particularly adolescents, on potential legal implications. 

Virginia Criminal Cases  

In the case of Johnson v. Commonwealth, 73 Va. App. 393, Johnson recorded D.B. while she was nude in her bedroom during sexual activity without her knowledge or consent.  Reasoning that the seriousness of the offense is the unlawful creation of a permanent recording and that consenting to being seen nude does not equate to consenting to being recorded while nude.  The court held that "reasonable expectation of privacy" under Code § 18.2-386.1 concerns privacy from being recorded, not from being seen.  The court also held that the statute does not require that the unlawful recording be disseminated to third parties.

In Blackwell v. Commonwealth, 73 Va. App. 30, the court held that a minor is not automatically a "nonconsenting person" under Code § 18.2-386.1 based solely on age, reasoning that the phrase "nonconsenting person under the age of 18" in § 18.2-386.1(D) indicates minors can be either consenting or nonconsenting.

Venue (geographically where a case should be tried) was clarified in Morehead  v.  Commonwealth, 66 Va. App. 241, which holds § 18.2-386.2(B) specifically allows for multiple, alternative venues for prosecution.  In this case, appellant posted nude photographs and videos of his estranged wife on a website without her authorization.  He then sent emails with links to the website and screenshots of the images to his wife.  Appellant sent the communications from a location in Virginia Beach.  The victim then received and viewed the emails and images while in James City County.  The Court held that, though receiving images is not itself a crime under § 18.2-386.2, venue is proper where the images are received.

Damages

Valuing these cases can be challenging due to the limited case history in Virginia and nationwide.  Successful plaintiffs are generally entitled to recover compensatory and punitive damages, as well as attorney fees and court costs.  Federal law, 15 USCS 6851(b)(3)(A), provides a framework for damages, allowing recovery of actual damages or liquidated damages of $150,000, plus litigation costs.  This includes experts such as digital forensics examiners as well as medical witnesses on the nature and severity of the plaintiff’s emotional distress.   The court may also order equitable relief, including a temporary restraining order, a preliminary injunction, or a permanent injunction ordering the defendant to cease the display of the visual depiction. 

Currently, Virginia lawyers must look to other state courts that have established precedent in measuring and calculating such damages.  In the New York case of J.M. v. Rozanov, 220 N.Y.S.3d 569, that court awarded $500,000 for past and future pain and suffering and $2,500,000 for punitive damages after plaintiff provided the court with relevant awards in other out-of-state cases that showed that the damages sought by her were well within the range representing fair and just compensation for pain and suffering of this nature.  Plaintiff, through her therapist’s testimony, proved depression, general anxiety disorder, fear of leaving home, difficulty concentrating on school, distrust of others, panic attacks, and reputational harm and stress caused thereby.

The Texas case of Patel v. Hussain, 485 S.W.3d 153, contains a thorough and defense-sided analysis of intentional infliction of emotional distress in a revenge porn case in which the court stressed that more than "mere emotions" such as being upset or enduring an unpleasant situation is required.  Rather, plaintiff experienced humiliation, constant nervousness, embarrassment, fear, and a high degree of mental pain directly related to defendant’s conduct.  Although plaintiff was successful on many counts, the court sustained defendant’s assignments of error questioning the lower court’s acceptance of plaintiff’s evidence offered through her own testimony and that of family and friends.   The 14th Court of Appeals awarded just $107,500 for past mental anguish and $107,500 for future mental anguish in this case, which is one of the worst invasion of privacy cases I reviewed.  Thankfully, Texas, like most courts, found that mental anguish can be proven through testimony of the victim, family and friends.

Revenge porn victims can also assert claims for additional torts.  North Carolina plaintiff in Clark v. Clark, 280 N.C. App. 384, asserted claims for intentional infliction of emotional distress, libel, violation of NC’s revenge porn statutes, harassment, and alienation of affection.  The court upheld the notion that severe emotional distress does not require medical expert testimony, but rather testimony of a plaintiff's friends and family can support her claim. Although Plaintiff did not attend counseling for her anxiety on a regular basis, she testified that she cried hysterically, hyperventilated, and lived in extreme fear. Her friend testified that plaintiff cried often, was very emotionally distraught, and experienced anxiety.  Plaintiff was also successful on her claim for libel per se because defendant had published communication to a third party that plaintiff had an infectious disease and other comments causing plaintiff to be subject to ridicule, contempt, or disgrace.  As such, plaintiff was awarded $1,510,000 in compensatory damages and $500,000 in punitive damages.

Conclusion

As Virginia continues to address the concerns of the modern age, additional tools including those outlined above will empower victims of sexual harassment in the digital world.   Virginia courts appear willing to approach cases with a focus on the victim’s reasonable expectation of privacy and, to a lesser degree, the defendant’s intent. Given these developments, attorneys must consistently monitor the case law in this area and be ready to advocate for victims.  At Pender & Coward, we are passionate about helping people who have been hurt by these kinds of exploitation.  We are ready to listen and to discuss your legal options to help you reclaim your dignity.

Kendall Rasberry is a Pender & Coward attorney focusing her practice on estate planning, probate, powers of attorney, estate and trust administration, business entities, and issues affecting special needs individuals.