Tort of Domestic Violence
The victim of an online publication of intimate images may bring a claim of the tort of domestic violence in situations involving bodily injury or the reasonable apprehension of imminent serious bodily injury. This tort would likely not be appropriate if the only offensive act is the publication of a consensually made sex tape. However, if the online publication of intimate images is one piece in a larger context of abuse between intimate partners that involved physical abuse, this cause of action would be appropriate, even if years have passed since the last physical abuse occurred.
b. Text of the Statute
“(a) A person is liable for the tort of domestic violence if the plaintiff proves both of the following elements:
(1) The infliction of injury upon the plaintiff resulting from abuse, as defined in subdivision (a) of Section 13700 of the Penal Code.
(2) The abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in subdivision (b) of Section 13700 of the Penal Code.
(b) A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages pursuant to Section 3294.
(c) The court, in an action pursuant to this section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any other relief that the court deems proper, including reasonable attorney's fees.
(d) The rights and remedies provided in this section are in addition to any other rights and remedies provided by law.
(e) The time for commencement of an action under this section is governed by Section 340.15 of the Code of Civil Procedure.” 1
Definition of Abuse under Cal. Penal Code § 13700(a):
“‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.”
Definition of Domestic Violence under Cal. Penal Code § 13700(b):
“‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.”
Research is ongoing. There are only eight opinions citing this statute to date, and none involve online publication of intimate images.
d. Practice Pointer
The court recognized a non-physical act as abuse in Pugliese v. Superior Court.2 That case involved a fifteen-year relationship, where the plaintiff ex-wife brought a civil action against her ex-husband for the tort of domestic violence.3 At the time plaintiff brought the case, there had been no physical acts for over three years, but emotional abuse had continued. The defendant moved to exclude all acts that occurred before the three years leading up to the lawsuit because of the statute of limitations, and the trial court granted his motion.4 Plaintiff appealed, and the appellate court ordered the trial court to set aside the motion finding that the legislative history of the tort of domestic violence indicated that “damages are available to victims of domestic violence, not just for the ‘last act’ of abuse, but for acts occurring prior to the date of the ‘last act.’”5 The finding in this case suggests that a victim of the online publication of intimate videos may be able to pursue a claim for the tort of domestic violence, even if the publication occurs years after physical abuse ceased.