Is Susanna Gibson a Victim of Revenge Porn?

In case you missed it, Susanna Gibson is a candidate for a seat in Virginia’s House of Delegates. Her campaign grabbed the public’s attention when it was revealed that she streamed sex acts online in exchange for tips. Here are all the details, as reported in The Washington Post:

A Democrat running for a crucial seat in Virginia’s House of Delegates performed sex acts with her husband for a live online audience and encouraged viewers to pay them with “tips” for specific requests, according to online videos viewed by The Washington Post.

Susanna Gibson, a nurse practitioner and mother of two young children running in a highly competitive suburban Richmond district, streamed sex acts on Chaturbate, a platform that says it takes its name from “the act of masturbating while chatting online.”

Chaturbate videos are streamed live on that site and are often archived on other publicly available sites. More than a dozen videos of the couple captured from the Chaturbate stream were archived on one of those sites — Recurbate — in September 2022, after she entered the race. The most recent were two videos archived on Sept. 30, 2022. It is unclear when the live stream occurred.

Gibson, 40, can be seen in the videos soliciting “tips” for performing specific acts — in apparent violation of Chaturbate’s terms and conditions, which say: “Requesting or demanding specific acts for tips may result in a ban from the Platform for all parties involved.”

In at least two videos, she tells viewers she is “raising money for a good cause.”

In multiple videos, Gibson interrupts sex acts to type into a bedside computer. Speaking directly into the screen, she urges viewers to provide tips, which are paid through “tokens” purchased through the site. In at least two videos, she agrees to perform certain acts only in a “private room,” an arrangement that requires the viewer to pay more.

“I need, like, more tokens before I let him do that,” she responds to a request that they perform a certain act. “One token, no. More. Raising money for a good cause.”

Almost immediately, as tips apparently arrive, she says “thank you” five times and tells her husband she will agree to that act.

Gibson takes the lead in addressing viewers on videos viewed by The Post, but in one case her husband, an attorney, chimes in with, “C’mon, guys,” to echo her entreaties for tips.

So now the scene has been set for the legal analysis.

She performed the sex acts online with no reasonable expectation of privacy. In such situations, the argument is sometimes made that there is an expectation of privacy, because the acts are performed for a limited number of paid members, and not for the internet at large. But this argument seldom withstands scrutiny because, as the saying goes, “the internet is forever.” Anything streamed out to the internet can be captured by anyone watching, who can then display it to others. This is even clearer in this case because, according to the Washington Post article, although the videos are initially streamed live, they are posted on other sites following the live stream, available to any subscriber. (Although it appears that these particular videos were removed after their existence was revealed.)

Nonetheless, according to an article published in the Independent, Gibson claims that releasing the videos are an invasion of her privacy. “It’s illegal and it’s disgusting to disseminate this kind of material, and we’re working closely with the F.B.I. and local prosecutors to bring the wrongdoers to justice,” her attorney said. Gibson’s attorney told the Post that disseminating the videos is a violation of Virginia’s revenge porn law, which makes it a crime to “maliciously” disseminate or sell nude or sexual images of another person with the intent to “coerce, harass, or intimidate.”

Is anyone guilty of Revenge Porn for releasing these videos?

And that takes us to today’s legal question. If some “Republican operative” found these videos online and notified The Washington Post of their existence, would that amount to Revenge Porn?

When I first heard that Gibson was making such a claim, I thought she had missed some crucial elements. In California, this scenario would not meet the definition of Revenge Porn. Here is California’s Revenge Porn statute, Penal Code § 647:

(4) (A) A person who intentionally distributes or causes to be distributed the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

(B) (i) A person intentionally distributes an image described in subparagraph (A) when that person personally distributes the image.

(ii) A person intentionally causes an image described in subparagraph (A) to be distributed when that person arranges, specifically requests, or intentionally causes another person to distribute the image.

Thus, under California’s Revenge Porn statute, one is only liable if there was some understanding between the parties that the image would remain private. There was obviously no such agreement between Gibson and the people she now claims distributed the videos.

Arguably, she would not even be able to satisfy the requirements that (1) the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and (2) the person depicted suffers that distress. Gibson posted the sex videos, presumably wanting people to watch. It would be a bit of a stretch to assume that she would then suffer emotional distress from making people aware that they exist.

But hold on Maude. Although I recognized that this fact pattern would not satisfy California’s statute, there was no reason to believe that Virginia’s statute had the same requirements. As it turns out, Virginia’s Revenge Porn statute is far broader in its scope. It provides:

§ 18.2-386.2. Unlawful dissemination or sale of images of another; penalty.

A. Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor. For purposes of this subsection, “another person” includes a person whose image was used in creating, adapting, or modifying a videographic or still image with the intent to depict an actual person and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic.

Thus, the Virginia statute does not require any privacy agreement between Gibson and the person distributing the video, nor is there even a requirement that Gibson was bothered by the distribution. The statute is based entirely on the intent of the person. Arguably, even if Gibson was thrilled that her sex videos were being offered to a wider audience, the one distributing the videos could be found guilty of violating this statute if the videos were posted “with the intent to coerce, harass, or intimidate.” If it could be shown that the videos were posted in the hope that it would scuttle Gibson’s political aspirations, that might be sufficient.

However, Gibson still has some problems in arguing this amounted to Revenge Porn.

Whether Gibson can “bring the wrongdoers to justice” will depend on who she views as the wrongdoers. She appears to be directing her wrath at the “Republican operative,” as the person was referenced in the Post article (even though he has no connection to the Republican’s campaign), and the Post.

But look at the wording of the statute again. One runs afoul of the statute, only if they maliciously disseminate or sell any videographic or still image. The Republican operative did not disseminate the videos. He merely made the Washington Post aware of their existence. And the Post also did not disseminate Gibson’s videos. The reporter for the Post states in the article that he had to go in search of the videos, which he found on an entirely different site.

Thus, unless a court concludes that acknowledging the existence of a video amounts to distributing it, Gibson will have no luck casting the Republican operate and the Post as wrongdoers. They cannot be found guilty under Virginia’s Revenge Porn statute under the plain meaning of that statute.

She might have better luck if she asks the police to pursue those who took the videos off the Chaterbate site and posted them on their own sites. But ironically, the prurient nature of those sites might be their saving grace. If those sites post the videos for the pleasure of their visitors, is that a malicious act, with the intent to coerce, harass, or intimidate Gibson?

That is not to say that Gibson’s attorneys can’t come up with some basis for civil liability as to those websites. They posted the videos, presumably to drive traffic and revenue to those sites, and at a minimum that violates a number of intellectual property protections.

But as to Gibson’s claim that this conduct violated Virginia’s Revenge Porn statute, I don’t expect to see any successful criminal prosecutions.

[UPDATE:] Gibson lost the election to her Republican opponent. As to her claims that the disclosure of her sex video was a criminal act, she soon had to face the harsh light of reality based on the points set forth above. In an interview, she conceded that the intent element was not present, and shifted instead to calling for the statute to be amended to remove any intent requirement.

Understandably, she was somewhat nebulous on the details of how that would work. Remember, the “Republican Operative” had not downloaded or distributed the video; he only made The Washington Post aware of its existence. To deal with this inconvenient truth, she apparently envisioned a law that would require a person to somehow divine whether the subject of the video had granted permission for it to be posted. If no such permission had been granted, then it would be inherently illegal to view the video. Presumably it would follow that to even acknowledge the existence of the illegal video, which could lead to people viewing it, would also be illegal since doing so would assist in the criminal act.

This circular logic is common when it comes to free speech. Gibson would likely argue that what she did in the videos was protected free speech, while seeking to silence anyone from discussing them.