Revenge Porn and Bankruptcy

Bankruptcy is Rarely an Option in Revenge Porn Cases

Your spouse or ex has shared your naked photographs and it caused you damage. You go through the process of hiring a lawyer and spend thousands of dollars to remove the images from the internet. After filing a revenge porn lawsuit, the perpetrator is now threatening to file for bankruptcy. Now, what do you do?

Most abusers think they can ignore a revenge porn suit and simply file for bankruptcy if they are caught sharing a naked photograph or video online. In our line of work, we have filed adversary proceedings in multiple states, including New York and Texas to prevent a culprit from avoiding a judgment

Revenge Porn Can be Nondischargeable in a Chapter 7 Action

Once an abuser files for a Chapter 7 bankruptcy action, any pending lawsuit or judgment is automatically stayed pursuant to 11 U.S.C. § 362. No more discovery can occur in the lawsuit and the defendant’s time to answer is paused. If the bankruptcy court grants the debtor’s Chapter 7 petition, then any money potentially owed to you in the revenge porn case becomes discharged, or goes away.

In order to prevent a discharge, a revenge porn victim must immediately take several steps, the most important being to file an adversary proceeding.

Filing an Adversary Proceeding in a Revenge Porn Bankruptcy Case

An adversary proceeding is a separate action in bankruptcy court against the debtor. You are the Plaintiff in the case and the culprit is the defendant. The purpose of the lawsuit is to exclude the money owed to you from the Chapter 7 bankruptcy discharge.

The adversary complaint should describe the cuplrit’s conduct and the allegations you have against him or her in your state court case. Normally the complaint from the state court case is attached to the adversary complaint. If you want the Bankruptcy court, rather than the state court, to decide the value of your claim and the amount of your damages, you will also need to file a request to remove the state court case to federal court.

Nondischargeability of Debt – 11 U.S.C. § 523(a)(6)

The plaintiff must argue that the debt is nondischargeable under 11 U.S.C. § 523(a)(6). A culprit cannot avoid damages if he shared the naked photographs or images “willfully and maliciously”. Each bankruptcy court defines willful and malicious differently. “Willful” means causing a “deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury”. This means it is not enough that the person’s conduct caused an injury; rather they had to intend an injury to be caused by sharing the naked pictures. It is enough to show that the culprit knew he or she was violating the law and meant to cause harm.

Malicious means wrong, or without any real reason to act. You do not need to prove that the perpetrator acted out of personal hatred, spite, or ill-will. Malice can be implied in a person’s actions and shown “when anyone of reasonable intelligence knows that the act in question is contrary to commonly accepted duties in the ordinary relationships among people, and injurious to another”

In In re Grossman, the bankruptcy court was tasked with determining whether the act of “upload[ing a] private video on a pornography website, labeling it with the plaintiff's maiden name and married name and the tags ‘amateur / ex-girlfriend’” was sufficient to support a claim for nondischargabiltiy. The Court found that the act was willful and malicious because:

Uploading the video onto the pornography website was self-evidently no accident. In addition, the defendant's acts of identifying the plaintiff by both her maiden and her married names are circumstances indicative of a subjective intent to embarrass and humiliate her, inviting harassment, shaming, stalking, or worse.

***

Here, there is direct evidence of factual malice. The defendant's animus towards the plaintiff and intent to injure the plaintiff is inherent in his act of labeling the uploaded sex tape with the tag "ex-girlfriend." It reeks of revenge and of intention to embarrass and humiliate the plaintiff in a manner that necessarily causes damages by inviting harassment, shaming, stalking, or worse.

 

In other words, the facts alleged in the First Amended Complaint support a determination by a trier of fact that the defendant's conduct was "malicious" under the requisite standard of being wrongful, intentional, inexcusable, and necessarily damaging to reputation and psyche

Using In re Grossman as a guide, culprits should not be able to hide behind bankruptcy to avoid their conduct.