26 Oct REVENGE IS NOT SO SWEET
Margaret A.M. Heine
is the principal counsel at Heine Law Group in Fullerton, California. She is licensed in California and Washington and has authority to practice before the Supreme Court of the United States and the United States Court of International Trade.
REVENGE IS NOT SO SWEET
When the ideal becomes reality, and the break up happens, what happens when adults start behaving like children? They are mad, they are angry, and they are vengeful. One or the other may feel like they have been wronged, taken advantage of, or otherwise abused. They have one thought, revenge.
Intimate partner abuse is up in the United States. According to a report published by the CDC, “National Intimate Partner and Sexual Violence Report”, 1 in 2 women and 2 in 5 men have experienced victimization by an intimate partner through sexual violence, physical violence or stalking.
According to The United States Department of Justice, domestic violence is defined as “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner”. This abuse may be physical or emotional, it can be physical, sexual, financial, and digital abuse. This is a complex area of the law and this article will only highlight a small number of examples and remedies.
If you are a victim of domestic violence, get help, get assistance. The courts offer free assistance. There is no fee for a restraining order; there are numerous help-lines, shelters, and legal aid societies to assist in most communities.
Generally, in domestic abuse cases or intimate partner abuse, a restraining order against the offending party would be the first defense in protecting the abused partner. A domestic abuse restraining order can include a number of orders such as: no contact between the parties, no harassing, stalking, threatening; a move out order for shared residences, spousal support, and child support orders. Sometimes, even with a restraining order, abuse continues which cannot be stopped with the order. Abuse such as cyber bullying, revenge porn, hate posting, may not be stopped by a restraining order. There are, however, other remedies available.
Social Media as a tool for libel is an all too familiar theme of intimate partner abuse or intimate partner plays for revenge. Social Media, due to its high accessibility, lack of oversight, and instantaneous delivery of content creates a hostile, war like environment for partners bent on revenge or to hurt one another. To justify the bad behavior between the parties, it is easy to slam, bait, defame, and bully the other partner. Unfortunately, that involves these venomous attacks not just being witnessed, read, and digested by the target partner, but both partners’ extended group of friends, family, acquaintances, and employers.
Posting unflattering photographs or photographs depicting any alleged wrongs by the other party, saying untrue and hurtful things are all standard operating procedure on facebook, instagram, twitter/X, porn sites, dating sites, and even tic toc. These postings amount to a “publication” or “distribution” of whatever terrible wrongdoing is alleged. This posting of information provides the basis for the actions of libel and defamation.
In a story first published by CBC News, an ex-boyfriend advertised the ex-girlfriend’s services as an “escort”, “prostitute”, and “someone looking for sexual adventure”. All of which were false. The ex-girlfriend was hounded by unwanted men. Some of the postings were actually “anonymous” [later proven to be from the ex], so a restraining order could not prevent the publication. This was a crime. It created a criminal act of assault, a civil act of defamation and/or libel, cyber bullying and infliction of emotional distress. All are serious actions and carry severe consequences. Those remedies, however, do not remove the hurt, shame, and stigma of the acts of revenge.
In a 2010 study, it was found that revenge porn has become an increasingly common crime intended to shame and intimidate victims. Often times, victims may suffer additional harm such as threats of physical violence, stalking, and criminal threats. A study by the Cyber Civil Rights Initiative found that 93% of victims suffered significant emotional distress because of their victimization; 51% had suicidal thoughts; and 49% stated they had been stalked or harassed online by users who saw their material.
In 2013, California passed SB 255, creating Penal Code sec. 647j, which makes revenge porn a criminal offense. If a person is convicted of the crime, they can face jail time and a fine. Under this law, posting an intimate photo of the other person or posting a recording of a sexual act on any video or internet site are all chargeable offenses under the law. It is also criminal to change a video or photograph, substituting the face of the ex partner for the real face in the photograph or video.
When the online postings make false statements and claims about the ex with the intention to damage that person’s character, impact their job or employability, or create a false persona with intent to harm that person, it is generally considered defamation.
The spreading of these lies and messages are accomplished in two primary ways: verbally or slander, and written or libel.
Slander would apply to anything spoken to any other person which is false. It could be spreading a rumor maliciously or simply making malicious false accusations. For example, calling a person’s workplace and reporting false information about them, attempting to get them fired or released from their job, making spiteful or judgmental comments about a person, could all be actionable. If these actions created lost wages, emotional anguish, humiliation or shame, among other things, the statements would be actionable. An action for slander would be made in California under Code of Civil Procedure section 46.
Libel is any false statement made in print or published in writing in any manner, such as on Twitter/X or facebook. Was the statement made maliciously, with an intent to harm the subject of the statement? Was the statement read by or available to be read by others? Was it false? If so, then under California Code of Civil Procedure section 45. On October 11, 2023, in the case of New York Times v. Sullivan, the Supreme Court of the United States – reviewed one of the standards for libel: whether or not the statement had to be made maliciously. The review found that there must be malicious intent in making the false statement. So, just simply stating a guess or conjecture, without malice, would most likely not be actionable. For example, “she looks so thin she must be bulimic”, would be an opinion, not necessarily stated with malice and would not be actionable.
Another civil action available is a claim for “False Light”. This is like a defamation action, except that the statement doesn’t have to be actually false. In false light, the offender is making statements that give rise to a false impression or conclusion. You cannot sue for both defamation and false light, so, you need to carefully separate the facts to determine which action would be available. The second important factor in a false light claim is to show that the impression which was created is highly offensive to a reasonable person. That means not just the person who was the subject of the statement is offended, but anyone reading the statement would be offended.
If this is happening to you, seek legal help as soon as possible. Most of these actions are only available for legal resolution within one year of their occurrence. Many shelters offer free counseling and legal advise. Your local legal aid society may be able to assist you as well as the clinics at your county courthouse. Contact a personal injury attorney for any civil claims such as defamation, slander, libel, and false light.
Of course, the easier solution is to take a sad situation such as a break up, and walk away as adults instead of setting out to make life miserable for the other party. Revenge is not always sweet.