45 Trial Lawyer • Winter 2022 Oregon’s recognition of the harm caused by nonconsensual pornography is demonstrated by the enactment of ORS 163.472 and ORS 30.833. Although challenges with respect to the enforcement and availability of remedies remain, it is imperative that we as members of the Oregon legal community continue to seek recognition of the harms of image-based abuse on behalf of victims, advocate for legal and policy reform, and challenge community attitudes that blame the victims and excuse the perpetrators of image-based abuse. Jacqueline Swanson specializes in representing survivors of sexual, domestic and gendered violence in personal injury and family law cases. Swanson contributes to OTLA Guardians at the Sustaining Member level. She is a partner in the firmGraves & Swanson, LLC, 707 SWWashington St., Ste. 600, Portland, Oregon 97205. She can be reached at [email protected] and 504-406-2140. statute, potentially denoting that state’s “significant interest” in the application and enforcement of its own law. Another common issue in revenge porn cases relates to establishing “disclosure” of the images, which is an essential element to establish criminal or civil liability. On its face, this seems relatively easy to prove because screenshots can be authenticated and witnesses can testify about their perceptions and experiences. But it is common for victims like Jane to react to the discovery of their victimization by immediately taking steps to remove all evidence of the crime (out of shame or fear), which can inadvertently make it more difficult to later prove the necessary elements of the action. Moreover, the perpetrator will often post or send the images from an alternate account, requiring the plaintiff to establish that it was in fact the perpetrator who disclosed the images. In these cases, practitioners should utilize the full powers of ORCP 43 to inspect, copy and ideally have an expert examine all hard drives, laptops and electronic devices owed by the defendant, which should be accomplished early in the case lest they “lose” relevant evidence. Experts may also be needed to perform data retrieval and investigation relating to the original images and subsequent posts, especially if the case involves multiple defendants (known or unknown). A related challenge is that a revenge porn plaintiff may need several different experts to prove their case and establish d ama g e s , no t t o me n t i on t h e employment of third-parties to mitigate continued and future harm (e.g., the hiring of a reputation management company). Hiring experts is, of course, a costly endeavor, which most plaintiffs cannot afford to pay out of pocket. This presents another problem in revenge porn cases: the recovery of any money award against the defendant. Although suits may be entertained against websites and companies under certain circumstances, in most cases, the appropriate defendant in a revenge porn action will be an individual. Even if that individual has some kind of insurance coverage available to cover the cost of defense, the unlawful dissemination of intimate images is an intentional tort which will almost certainly be excluded from any policy. But if the defendant does not have assets from which to pay a judgment, it may be difficult to secure satisfaction, which in turn can be extremely disheartening and retraumatizing to the individual survivor. It is therefore important to have conversations with potential clients at the outset of a case about the possibility of recovery in light of his or her primary objectives and goals. Moving forward Image-based abuse has emerged so rapidly, it is inevitable law and policy are playing catch-up. Yet, in the absence of adequate legal and support responses specifically addressing these wrongs, victims have had limited access to justice.
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