A Blog by Jonathan Low

 

Apr 4, 2016

Burden of Proof: Revenge Porn Lawsuits Are Proving Difficult To Win

Juries want to know why victims permitted such videos in the first place - and then shared them or saved them on their phones. JL

Matthew Goldstein reports in the New York Times:

(A) decision to drop charges may illustrate the difficulties in pursuing such cases because they require a jury not to hold the victim partly responsible for creating the sexually explicit images in the first place and either sharing them with a former partner or storing them on a cellphone.
A big law firm’s novel lawsuit filed on behalf of a woman who says she was a victim of revenge pornography may be complicated by a decision in a related criminal case.
Federal prosecutors in Los Angeles decided last month to drop a two-year-old criminal case against the woman’s former boyfriend accusing him of posting sexually explicit images of her online.
The prosecutors asked a federal judge to dismiss the indictment charging David K. Elam II with stalking, aggravated identity theft and unauthorized access to the computer of the woman, whom he had met through an online dating service. On March 21, Judge Manuel L. Real of Federal District Court for the Central District of California granted the order and dismissed the case against Mr. Elam.
The end of the criminal case against Mr. Elam, 30, could pose a quandary for lawyers from the law firm K&L Gates’s Cyber Civil Rights Legal Project, which has been providing legal representation to the woman and others who are say they are victims of “revenge porn” — a type of online harassment that occurs when former lovers or hackers post sexually explicit images of people online without their permission.
A civil case brought on behalf of the woman, identified in court papers as Jane Doe to protect her privacy, was filed by the K&L Gates clinical program a few months after the criminal charges were filed against Mr. Elam in 2014.
David Bateman, a partner at K&L Gates, which is based in Pittsburgh and has offices around the world, said the firm had no plans to drop the lawsuit against Mr. Elam. The suit seeks money damages, asserting that he infringed on the woman’s right to keep the sexually explicit videos private under federal copyright law.
He also said that the firm had no second thoughts about taking the woman’s case — which was one of the first civil lawsuits filed by the program.

Document

Civil Lawsuit on Revenge Porn

The former boyfriend of a California law student posted nude selfies and a sexually explicit video of her on pornographic websites.
OPEN Document
“We are not able to comment on any decision by federal prosecutors,” Mr. Bateman said in an emailed response. “However, our civil case will proceed.”
The woman was a law student in California at the time of the incident. Authorities contend Mr. Elam began to harass her after they broke up.
A representative for Eileen M. Decker, the United States attorney in Los Angeles, offered
no explanation for dropping the case except to say that the office had decided it could not meet its burden of proof at trial.
Federal authorities began their investigation into Mr. Elam in 2013. Just two months ago, federal prosecutors notified the court that they intended to introduce evidence at trial that in 2012, Mr. Elam harassed and stalked another former girlfriend online.
Lawyers for Mr. Elam did not return requests for comment.
In recent years, federal prosecutors in Los Angeles have earned a reputation for being particularly aggressive in pursuing cases against both former boyfriends and hackers selling unauthorized sexually explicit videos to websites. One notable case was the successful prosecution of Hunter Moore, who ran a now-defunct website that specialized in posting revenge porn videos that were stolen from people’s computers and posted without their permission.
The decision to drop the charges against Mr. Elam may illustrate the difficulties in pursuing such cases because they require a jury not to hold the victim partly responsible for creating the sexually explicit images in the first place and either sharing them with a former partner or storing them on a cellphone.
The woman, who was identified in the criminal case only by the initials N.A., would have had to testify at trial using her own name.
While prosecutors may have faced hurdles in a criminal trial, a lawsuit has a lower burden of proof.
This year, a federal appeals court upheld a stay of the civil suit pending the outcome of the criminal case. Now that the criminal case is over, the stay will probably be lifted.

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