Scandoval: Revenge Pornography and Complex Victims

Posted in: Human Rights

For those of you not conversant in Scandoval, the reality television scandal that dominated news coverage this past year, you may not have noticed the most recent event in which Rachel Leviss filed suit against her ex-boyfriend Tom Sandoval and his ex-long term partner Ariana Madix for revenge porn. But I argue in this piece, it is worthy of your attention even if you do not care about reality television. This legal episode provides an opportunity for the public to learn what the legal content of revenge pornography is and why it matters that one of the most reviled reality television stars is claiming her right to file such a suit.

By way of brief background, Rachel Leviss engaged in a multi-month affair with Tom Sandoval, her castmate and the long-term partner of her friend Ariana Madix. Leviss alleges that without her knowledge or consent, Sandoval recorded FaceTime sessions of Leviss’s masturbation. All parties seem to agree that Madix learned of the videos when she found them on Sandoval’s phone. Leviss further alleges that Madix viewed the videos, then sent the videos to herself, to Leviss, and then eventually to other co-workers and members of their mutual friend group. Vanderpump Rules, the show on which all three were castmates, then resumed filming and both the finale episode and reunion included acknowledgement of the videos.

Many of the responses to the litigation from those in the shared social universe have been rooted in victim blaming. For example, the “matriarch” of the show commented, ““I think if you don’t want to have somebody share your porn, then don’t send it to your best friend’s boyfriend.” Other commenters suggest the lawsuit is a grasp for media relevancy or for a payout. But I think it is instead most charitably read as an important example of a high visibility, imperfect victim claiming her rights, demanding that the law, if not society in general, recognize her standing to make demands on her own behalf and the legitimacy of seeking redress for harm even as she inflicted harm on others. In order to unpack this argument, I turn first to the law of revenge porn and explain the emergence and lingering confusion over what exactly this is.

Revenge Porn or Nonconsensual Porn

California, the jurisdiction for Leviss’s suit, was one of the first states to criminalize the creation and distribution of revenge pornography. The California statute currently prohibits (1) the intentional distribution of an image of intimate body parts or a person engaging in sexual intercourse, sodomy, oral sex, or masturbation (2) where the person depicted “agree[s] or understand[s] the image shall remain private” and the distributor “should know that distribution of the image will cause serious emotional distress” and the depicted person does in fact suffers serious emotional distress. Note that in California, the distributor need not intend such distress, but rather simply be aware of the consequence. The reason I emphasize this language is because revenge pornography does not in fact rely on revenge or other similar motives and a significant amount of so called revenge pornography stems from other motives such as bragging rights or arousal. Relatedly, as other scholars have emphasized, often times, the distributor is often someone other than a past romantic partner. In this particular case, were Madix to be charged criminally, a defense that she shared the videos simply to confirm the existence of the affair would be unavailing. Under such an approach, the real emphasis is on the non-consensual sharing rather than on the intent of the distributor so long as the harm threshold is satisfied.

Subsequently, California, unlike most states, also added a prohibition on revenge pornography to its civil code CA Civ Code § 1708.85 (2022) allowing for a private cause of action when a person intentionally distributes a reproduction of another as described above if the distributor “knew, or reasonably should have known, that the other person had a reasonable expectation that the material would remain private” (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages. Of the states that do provide a civil remedy, some, like New York narrow the intent requirement to the “purpose of harassing, annoying, or alarming such person.” In other words, New York seems to be limited to the original understanding of this offense—that it is motivated by revenge or a desire to harm whereas California instead emphasizes the non-consensual nature of the act.

This broader understanding is important as many may mistakenly believe there is nothing wrong criminally, civilly, or even morally with the nonconsensual sharing of intimate images absent a revenge-like motive. Given the high visibility of Leviss’s lawsuit, it provides an excellent opportunity to explore the distinction between the two views and the reasons why non-revenge non-consensual pornography is problematic. For instance, Danielle Citron has arguedcompellingly about the importance of sexual privacy, suggesting that individual control over one’s intimate life is essential to human dignity and self-respect. Mary Ann Franks has written extensively about how non-consensual pornography can negatively affect victims’ personal safety, their educational and employment opportunities, and their interpersonal social relationships. Many victims experience suicidal thoughts, which some carry out. And articulating that brings me to my second point, that a lawsuit brought by such a high-profile complex victim may also provide an opportunity to reinforce that all persons have worth and deserve autonomy over their sexual images.

Complex Victims

I’ve written before, in reference to Britney Spears and Taylor Swift and #MeToo victims more generally, about the immense pressure to present as an ideal victim. In order to sway juries or publics, victims fare best when (1) they are weak in relation to the offender—often some combination of female, disabled, and very young or very old; (2) they are acting virtuously or at least going about legitimate, everyday business; (3) they are blameless in regard to the crime; (4) they do not know the person who has committed the crime; (5) the perpetrator is unambiguously big and bad; and (6) the “victim has the right combination of power, influence or sympathy to successfully elicit victim status without threatening (and thus risking opposition from) strong countervailing vested interests.

But Leviss neither fits in nor accepts that mold. Leviss has spent the last year reviled as a woman who cheated with the long-term partner of one of her friends. She was neither virtuous nor, to many, blameless. Indeed, in Leviss’s complaint, her attorney notes “Leviss has repeatedly acknowledged that her actions were morally objectionable and hurtful” to her former friend. In earlier times in America, Leviss might have even been criminally and or tortiously liable under heart balm statutes had Sandoval and Madix constituted a married couple. In contrast, the public viewed Madix, the named perpetrator, so sympathetically that she landed numerous lucrative sponsorship deals in the wake of Scandoval.

Rather than being an ideal victim, Leviss is a complex victim. What I mean by this is that she affirmatively engaged in wrongdoing at the same time that she experienced significant wrongdoing against her. I’ve written beforeabout why complex victims ought to be both held accountable for their wrongdoing, but also eligible for redress for the harms done to them. The harm she alleges in this case is quite significant, though some of it might be disentangled from the nonconsensual pornography in particular. Leviss lost many friends, she was aggressively berated by her castmates on national television, and her public brand was significantly tarnished. She spent two months in in-patient therapy and, by her account, suffered from suicidal ideation.

Even so, this lawsuit is a way of saying she is still human and still worthy of having that humanity recognized and respected. In other words, despite her significant wrongdoing, she still deserves to have her sexual privacy respected and receive redress when it was not respected. In public discourse, many believe it is Leviss’s fault for betraying her friend and for engaging in masturbation over FaceTime. But the law now recognizes that one ought to have an expectation that images of sexual behavior are both private and absent consent, not available for distribution, regardless of the harms that sexual behavior might impose on others. My hope is that this litigation can help shift the narrative both about why such images ought to be protected and why everyone, not just the blameless, deserve to keep such images private.

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