Virginia Dem, who livestreamed racy sex videos, says she’s a victim. Is she right?

The bizarre story of Susanna Gibson and her bid for a seat in the House of Delegates has occupied much of the conversation in Virginia, where I live. The Democratic candidate was recently exposed by the Washington Post for broadcasting sex acts on a site called Chaturbate for money. The tips, she reportedly promised, would be donated to a “good cause.”

Top Democrats rallied behind Gibson, as did the group Emily’s List. I had little interest in the story until Gibson, 40, claimed that disclosing his online solicitations constituted an actual “sex crime” and a violation of his privacy.

According to the Post, Gibson posted more than a dozen videos in September 2022, after officially entering the race in suburban Richmond. Virginia State Sen. L. Louise Lucas and other Democrats defended Gibson, saying he was the target of a blow from Gov. Glenn Youngkin and Republicans. However, it was the Post that broke the story.

Virginia Democratic candidate posted sex acts with husband online while seeking counseling

The other Democrats remain silent. Sen. Tim Kaine, D-Va., a former Democratic vice presidential nominee, had just appeared with Gibson at an event but insisted that “I really don’t know her that well.”

However, what caught my attention was Gibson’s statement that revealing his alleged online solicitations constitutes a “sex crime” and “an illegal invasion of my privacy” by Republicans.

The claim of confidentiality

Let’s start with the privacy claim. The Post revealed that Gibson offered to perform sex acts with her husband to get “advice” online. That would have included more than a dozen videos in September 2022, after she officially entered the race in suburban Richmond for the 57th District House of Delegates.

I’m far more concerned about Gibson’s view of criminal and constitutional law than his alleged online fetishism. I am also concerned that Gibson assumed the status of a victim of a sex crime on this basis. Real victims need judicial and legislative support.

There are a few torts that could be invoked, but none would be binding in the circumstances. There is the crime of public disclosure of embarrassing private facts:

652D Publicity given to private life
One who gives publicity to a matter concerning the private life of another is liable to the other for invasion of his privacy, if the matter made public is of a nature which (a) would be highly offensive to a person reasonable, and (b) is of no legitimate concern to the public.

However, this was not a private matter. Rather, Gibson allegedly sought a public audience to exchange performative sexual acts for money.

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The second offense is inclusion during isolation. Under the second restatement, citizens can sue for violation of intrusion into seclusion:

652B Intrusion during isolation
He who intentionally intrudes, physically or otherwise, into the solitude or isolation of another or into his private affairs or concerns, exposes himself to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

However, it is not a deprivation of “isolation” when Gibson seeks public exposure.

In this image taken from video, Virginia legislative candidate Susanna Gibson addresses the Women’s Summit in Virginia Beach, Virginia, September 2022. Gibson spoke out against the leaking of live videos on a pornographic website in which she and her husband engaged in sexual relations. actions. ((Neil Smith via AP))

Indeed, the site shows a long-standing anomaly in our criminal law. It would be illegal for Gibson to offer sex for money on the street under our prostitution laws. Still, it’s not illegal to seek money for sex on film or in live chat rooms.

The criminal allegation

Daniel P. Watkins, an attorney for Gibson, argued his criminal violation claim, citing the state’s revenge porn law. As discussed below, the law makes it a Class 1 misdemeanor to “maliciously” distribute nude or sexual images of another person with “the intent to coerce, harass, or intimidate.”

This case does not suggest malicious distribution or sale of any videography or still image. These images were made public by Gibson and these reviews largely describe the images rather than broadcast them. The site isn’t even password protected for access to Gibson’s images.

She and her husband had almost 6,000 subscribers.

Indeed, even the service provider itself is protected by law.

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Using the law to target the Washington Post or political critics would clearly run afoul of the First Amendment.

Watkins cited Ronnie Lee Johnson v. Commonwealth of Virginia as the basis for Gibson’s claim that she is the victim of a sex crime. It is true that it was a consensual sexual encounter which was later made public. However, this was a secret recording and the women did not consent to it being distributed to others.

I found no claim by Gibson that her husband secretly recorded these encounters or that she was unaware of (or did not knowingly participate in) the publication of the sexual acts. Indeed, the Post reported it as follows:

“In several videos, Gibson interrupts sex acts to type on a bedside computer. Speaking directly on screen, she urges viewers to give tips, which are paid through “tokens” purchased on 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.”

Watkins pointed to a 2021 Virginia Court of Appeals ruling that found it illegal for a man to secretly record his girlfriend having consensual sex, even if he didn’t show the video to anyone. others.

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I’m far more concerned about Gibson’s view of criminal and constitutional law than his alleged online fetishism. I am also concerned that Gibson assumed the status of a victim of a sex crime on this basis. Real victims need judicial and legislative support.

These concerns concern Gibson as a legislator. As many people on this blog know, I have long been an advocate for people’s rights to have controversial speech and associations in their private lives. Engaging in online pornography is a legal act for Gibson. The political repercussions of such fetishism fall on the voters of the 57th District. This question will ultimately be resolved by the political system and not the legal system.

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