A victim of nonconsensual online publication of sexually explicit material will likely be able to obtain a restraining order that prohibits the perpetrator from continuing to harass the victim online. There are two types of restraining orders that are most likely to be available to a WMC victim: (1) a Domestic Violence Prevention Act (“DVPA”) restraining order, Cal. Fam. Code §§ 6200 et seq.; or (2) a civil harassment restraining order, Cal. Code Civ. Proc. § 527.6.
There is so much to say about the use of restraining orders to combat nonconsensual pornography that WMC is currently developing Digital Abuse Cheat Sheets that focus specifically on this topic (forthcoming, Summer 2016).
In the meantime, we will provide a brief overview here, but please know that this section in its current iteration is merely a starting point for your research.
If you are eligible for a DVPA restraining order (Cal. Fam. Code § 6211 for required relationship), this is probably the way to go because DVPA restraining orders typically offer more protection, and are typically easier to get. We say that they are easier to get because the standard of proof is different. Civil harassment orders require clear and convincing evidence of harassment, Cal. Code Civ. Proc. § 527.6(i), whereas DVPA orders may issue upon a demonstration of “reasonable proof of a past act or acts of ‘abuse.’” (Cal. Fam. Code § 6300.) In addition, the statutory definitions of abuse and harassment are different. Under the domestic violence statute, one nonconsensual porn act can constitute “disturbing the peace” abuse for which an order will issue provided the petitioner can meet the burden of proof. Under the civil harassment scheme, a nonconsensual porn victim is most likely to be arguing “harassment” by “knowing and willful course of conduct,” which requires a course of conduct (more than one act) directed at the petitioner. (Cal. Code Civ. Proc. § 527.6(b)(3).)
To determine whether to proceed under domestic violence or civil harassment laws, a WMC victim should consider the following issues with her support team.
□ What is the burden of proof for the TRO?
□ What is the burden of proof for the order after hearing?
□ If domestic violence: What is the definition of abuse?
□ If civil harassment: What action is covered?
□ Who can petition? What is the required relationship?
□ Who can be protected?
□ What orders can be granted?
□ What is the duration?
We have answered those questions for California. See Without My Consent’s forthcoming Digital Abuse Cheat Sheets.