Today’s question comes from Nikki F. Who asks: “My former boyfriend and I were together for a long time. His job required a lot of travel.
When he was away we would talk a lot on the phone and engage in what people call “sexting” – we would send selfies back and forth of us in the nude and while engaged in self stimulation. He also recorded video of us being intimate on his cell phone so he could “watch it on the road.” I always told him that he couldn’t show it to anyone else and thought that this was just between us. After a series of infidelities I broke up with him and told him what I thought of him. Recently I have discovered that he posted some of those pictures on websites designed to humiliate people. He told some of his friends to check out the pictures and that’s how I heard about it. I feel violated completely exposed and humiliated What if anything can I do?”
Nikki- I am sorry to hear that not only your trust but your privacy violated. Make this a lesson to other readers, do not let digital images of yourself in compromised positions be made by anyone! This type of conduct has led to laws being passed to protect people from what has been called “revenge porn.” McAfee, one of the worlds foremost developers and purveyors of computer security systems and software, conducted a study in 2013 which indicated that 94% of people felt that their personal information, data, and imagery was safe in the hands of their partners. The same study showed that 13% of people had their personal information leaked to others without their permission, 1 in 10 ex-partners have threatened to reveal risque photos online, and 60% of those threats have been carried out. The study evaluated what were the events which led a partner to expose the private information and found the most common reasons for such a breach were that the partner; lied (45%), cheated (41%), broke up (27%), called off a wedding (14%); had posted picture with someone else on line (13%), and other (13%).
In 2013 California enacted Senate Bill 255, signed by Governor Brown in October of 2013. SB 255 stated, in relevant part, that a crime occurs when “Any person who photographs or records by any means the image of another identifiable person with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy, and subsequently distributes the image taken, with the intent to cause serious emotional distress, and the other person suffers serious emotional distress.” SB 255 made the crime a misdermenor with a maximum punishment of up to six months in jail and/or a $1,000.00 fine.
Following the scandal with Jennifer Lawrence wherein she, and several other notable celebrities, such as Ariana Grande, had their private cell phones and cloud storage hacked resulting in widespread publication of intimate sexually provocative photographs, it was clear that SB 255 did not go far enough as it only covered instances where the photographs were taken by another without consent and not the unauthorized publication of photos taken with consent but which were published by a hacker. In 2014, the state legislature unanimously passed SB 1255, signed by Governor Brown on September 30, 2014, which stated that a crime is committed when “Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.” So, SB 1255 makes “revenge porn” or invasion of privacy of this type a crime regardless of who took the photograph. So, in your case Nikki, it appears that a crime was committed.
You have several options. You can report your ex to the police and if they take the case and file a charge, the DA will determine whether or not to prosecute. The DA has to chose how to allocate their resources and may or may not prosecute the case. In addition to pursuing a criminal remedy, you may also have grounds for a civil lawsuit for the invasion of your privacy and the intentional infliction of emotional distress. These actions are pursued by Trial Lawyers like myself.
Often times, because of the limited resources the DA has, which are devoted to prosecuting violent crime, your only remedy is a civil action.
