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

The bizarre story of Susanna Gibson and her candidacy for a seat in the House of Delegates has occupied much of the conversations around Virginia, where I live.  The Democratic nominee was exposed recently by the Washington Post for streaming sex acts on a site called Chaturbate for money. The tips, she reportedly pledged, would go to a "good cause." 

Leading Democrats have rallied around Gibson as has the group Emily’s List. I had little interest in the story until Gibson, age 40, alleged that the disclosure of her online solicitations is an actual "sex crime" and a violation of her privacy.

According to the Post, Gibson posted more than a dozen videos in September 2022, after she had officially entered the race in suburban Richmond. Virginia State Sen. L. Louise Lucas and other Democrats have defended Gibson of being the target of a hit job by Gov. Glenn Youngkin and the Republicans. However, it was the Post that ran the story.

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Other Democrats are silent. Sen. Tim Kaine, D-Va., a former Democratic vice presidential candidate had just appeared with Gibson at an event but insisted "I really do not know her that well."

Virginia Democratic House of Delegates candidate Susanna Gibson (Susanna Gibson campaign website)

However, what caught my eye was Gibson’s statement that the exposure of her alleged online solicitations constitutes a "sex crime" and "an illegal invasion of my privacy" by Republicans.

The Privacy Claim

Let’s start with the privacy claim. The Post revealed that Gibson has been offering to perform sex acts with her husband for "tips" online. This reportedly included more than a dozen videos in September 2022, after she had officially entered the race in suburban Richmond for the House of Delegates in the 57th district.

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

There are a couple torts that could be raised but neither would be compelling in this circumstance. There is the tort 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 subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

However, this was not a private fact. On the contrary, Gibson was allegedly seeking a public audience to exchange performative sex acts for money.

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The second tort is the inclusion upon seclusion. Under the Second Restatement, citizens may sue for violations of the intrusion upon seclusion:

652B Intrusion Upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

However, this is not a deprivation of "seclusion" when Gibson is seeking public exposure.

In this image taken from a video, Virginia legislative candidate Susanna Gibson addresses the Women's Summit in Virginia Beach, Va., in September of 2022. Gibson has denounced the disclosure of live videos on a pornographic website in which she and her husband engaged in sex acts. ((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. Yet, it is not illegal to seek money to have sex on film or on live chat rooms.

The Criminal Allegation

Daniel P. Watkins, a lawyer for Gibson, supported her claim of a criminal violation, citing the state’s revenge porn law. As shown below, the law makes it a Class 1 misdemeanor to "maliciously" distribute nude or sexual images of another person with "intent to coerce, harass, or intimidate." 

This case does not suggest malicious dissemination or the sale of any videographic or still image. These images were made public by Gibson and these critics are largely describing the pictures rather than disseminating the image. The site is not even password-protected for access to Gibson’s images.

She and her husband had almost 6,000 followers.

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

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The use of 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 the case involved a consensual sexual encounter that was later made public. However, it was a secret recording and the women did not consent to the distribution to others.

I could not find any claim by Gibson that her husband secretly recorded these encounters or that she was not aware of (or knowingly participated) in the publication of the sexual acts. Indeed, the Post reported on it as follows: 

"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."

Watkins pointed to a 2021 Virginia Court of Appeals ruling that found it was unlawful for a man to secretly record his girlfriend during a consensual sexual encounter even if he did not show the video to others.

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

Those concerns are relevant to Gibson as a legislator. As many on this blog know, I have long defended the right of people to have controversial speech and associations in their private lives. Engaging in online porn is a lawful act for Gibson. The political repercussions of such a fetish rests with the voters of the 57th District. This matter will ultimately be resolved in the political, not the legal, system.

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