Without My Consent

a. Introduction

 

The victim of the nonconsensual online publication of intimate photographs or videos can bring a claim for stalking in situations where the publication of the material was conducted for the purpose of harassing the victim and the harasser either threatened the victim or his/her family or was under a restraining order.

 

b. Text of the Statute

 

“A person is liable for the tort of stalking when the plaintiff proves all of the following elements:

 

(1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff.  In order to establish this element, the plaintiff shall be required to support his or her allegations with independent corroborating evidence.

 

(2) As a result of that pattern of conduct, the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member.

 

(3) One of the following elements:  

 

(a) The defendant, as part of the pattern of conduct specified in the first paragraph above, made a credible threat with the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member and, on at least one occasion, the plaintiff clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct. 

 

(b) The defendant violated a restraining order, including, but not limited to, any order issued pursuant to the Code of Civil Procedure section 527.6, prohibiting any act described in Civil Code section 1708.7(a).”1

 

c. Cases

Procedural Posture: Ex-wife appealed denial of the extension of a Domestic Violence Prevention Act restraining order against her ex-husband.

 

Law: Domestic Violence Restraining Order—Cal. Fam. Code § 6320; Civil Harassment—Cal. Civ. Proc. § 527(b); Civil Stalking Statute—Cal. Civ. Code § 1708.7

 

Facts: Following their divorce, ex-wife discovered that ex-husband had accessed her email account without her permission. Ex-wife sought restraining order to prohibit ex-husband from accessing her email, and force him to return all of the material he had previously obtained. She received a temporary restraining order, but was denied an extension. The temporary restraining order enjoined the ex-husband from “engag[ing] in any behavior that has been or could be enjoined such as blackmail, slander, stalking, threatening, harassing, and disturbing the peace of [ex-wife] or third parties through the use of personal information accessed through [ex-wife’s] email.” Ex-wife was concerned that content from emails would be used to publicly humiliate her: “I am also quite disturbed by [ex-husband's] statement [in his August 31, 2007 supplemental declaration] ... ‘that I have procured more evidence from the above-mentioned email accounts, which could be considered inflammatory and sensitive to certain others. I have no intention to share these emails other than as evidence in future legal proceedings.’ Given that the information was in my email account, I believe this statement is a direct threat that unless I succumb to his demands in the family law case, he will interfere and directly impact my business relationships. I also believe he will file my personal emails in the family court action in order to embarrass me, and to injure my relationships with my family members and third-parties, including professional clients.” 

 

Outcome: Denial of restraining order reversed. Trial court was instructed to hold a hearing on the merits of the application for restraining order and allow presentation of additional evidence.  

 

d. Practice Pointers

 

The existence of a restraining order allows a victim to obtain relief for stalking based on a reasonable fear that s/he was unsafe due to a pattern of harassment.