BUTTE COUNTY DIVORCE AND FAMILY LAW BLOG

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https://buttecountyfamilylawlawyer.blogspot.com/

California Penal Code 647(J)(4) Divorce, Facebook, and the Alleged Xact Rated Photos?

Divorcing spouses should know, it is possible 
to sue the ex spouse for tort damages such as 
emotional distress;   this is seen in some cases 
where false accusations of molestation have been 
levied, or other egregious tort violations.

Note: Attorney believes it is not a good idea to take alleged adult-porn photos of oneself, when you plan to post it and do or did post it online,whether you do it yourself or not, because it only takes ONE bad incident to make this into a problem.... which could have been avoided if you simply do not do it? 

     For that matter, think carefully about being photographed for any compromising situation..too drunk, in pic with drugs......Just think of the ramifications it could have on your kids, and the friends of your kids, and anyone else that found out? Attorney is assuming you do not want to be a porn star, (but judging from what we have seen in years past, apparently more than several people really do want to be x rated stars) so if you do, then ignore this advice.)  As an example, the girl with hat on at left, would not likely be considered a porn photo.                                 

California lawmakers recently amended the state’s disorderly conduct law to criminalize some forms of "revenge porn" (SB 255) and resulting in CA PC 647(J)(4).

 Under the new law, it is a crime to photograph or otherwise take private, nude photos of another person and distribute the photos in a way that is intended to and does cause emotional distress; and revenge porn is punished more severely if the victim is a minor or if the defendant has previously been convicted. Critics have charged that the California law does not go far enough in helping victims, because it does not protect them from subsequent distribution of sexual self-portraits.

 "On its face this sounds good; but, upon closer examination there are many loopholes in the statute, such as it excludes: “selfies” (the law requires someone else to have recorded the image); redistributors (the laws only applies to the person who took the photograph or recording, not others who may then redistribute the image, as often done by websites);  and hackers (those who obtain these images through hacking a computer).  

 The new law also creates disputes about agreements about privacy, and measuring sufficient intent to cause serious emotional distress.  A wonderful discussion about the statute itself can be found in Eric Goldman’s article written for Forbes."

...and more... " [t]he California Domestic Violence Prevention Act has probably always provided protection...  The reason I state “revenge porn” probably has always been protected against in family law is because the act of distributing these private images probably constitutes harassment and in California engaging in harassing activities can subject a person to restraining orders."  
"By viewing this behavior as harassment, we potentially avoid having to address the loopholes left by the criminal statute; and we avoid seeking redress through a very difficult criminal system.  In other words, even if someone took a “selfie” and then an angry ex gains possession of the “selfie”, posts the “selfie” on line or distributes it via email, this could constitute harassment."  

"Therefore, in this example, while there may be no crime (because a “selfie” is excluded under the new criminal statute because it is not taken by another person), the victim of such public exposure may still find protection in the family courts.  As for those situations where another person takes the photograph or recording and distributes such images, while that may be a crime if all of the elements of the statute are met, may also be restrained under the family law statutes."       
http://www.mvolaw.com/archives/revenge-porn-crime-harassment/
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http://www.huffingtonpost.com/don-schweitzer/seek-destroy-faqs-on-divorce-revenge-porn-and-social-media-slamming_b_6572910.html?utm_hp_ref=divorce-advice

This excerpt below is from attorney Don Schweitzer, Esq. out of Pasadena, talking about issues such as Facebook, revenge porn, the law on same, and who owns photos..........

In January, the "Revenge Porn" law, which falls under the California Penal Code 647 (J), was amended in California to include that prosecutors no longer have to prove intent when pursuing against the unlawful distribution of intimate images. 

This is great news for the spouse worried about the archives stored in a once-shared computer hard drive, but the questions most divorcees want to know are:

I want to own all the images and videos. Aren't they technically mine, since I'm in them? 

Here's the truth: At least in the state of California, there is no specific code or case law that presently speaks on the property rights of photographs or videos. In fact, currently, photos and videos, regardless of how risqué the content, are handled no differently then when parties are dividing up photos and videos of their children. 

Typically, the person who has possession of the photos and videos ends up as the rightful owner after the divorce. In some cases the person who has possession of the archives will be asked for duplications, which can be at the financial responsibility of the other party. The California family code has no provision mandating that a court order of intimate photos be turned over to other party. If it gives you piece of mind to have copies of the images, then it is doable, but to seek sole ownership would be at the discretion of the court to award it.

What if I seek and destroy the 'evidence' prior to filing for divorce?

Don't do it! Photos and videos are treated as "property" in a divorce case, so intentional removal, destruction or manipulation of any and all property is a violation. As embarrassing as the topic may be, your best protection is to talk with your lawyer about the photos and videos, and elaborate on any concerns or intent involving your ex-spouse. The more information your lawyer knows, the better he/ she can be equipped to create a plan to make sure your emotional distress doesn't escalate during the divorce process.

Speaking of "property," does this mean that I have partial ownership over my spouse's social media accounts? What rights do I have if I want my soon-to-be ex to remove photos of our children and myself?

Currently there is no code or case law that mandates ownership or property of social media accounts, and the family courts have limited discretion when parties disagree about the type of content one party is posting on social media. Generally speaking, it's best for both parties to keep their profiles "private" and adhere to the many guidelines and tips on how to keep your children safe on social media. 

The Family Court would only be concerned if the photos posted to an account were detrimental to the health and safety of the child otherwise, freedom of speech rules. 

Finally, I heard my ex is slamming me on his Facebook account, calling me names and airing our dirty laundry as his status posts. I don't have access because his account is "private" and we are no longer "friends," but mutual friends have sent me screen shots of his posts. Can he do that?

Typically a family court will not issue an order for removal of the social slamming; however, the family court will take into consideration any and all copies of text messages, Facebook screenshots, tweets and the like when evaluating child custody requests. So while the court can't tell you what not to post, I strongly advise to play nicely because any information leaked can be used against you.

Even if children are not in the picture, the fact is any type of intent of emotional distress or harassment will be considered during a divorce process. Berating or speaking negatively about your soon-to-be ex--whether it is in person, online or via phone or text message--is still considered evidence. And how you react is also duly noted. My advice for all clients when a new emotional stone is turned is to walk away, call your lawyer, then react together. This allows for the best, legally sound outcome in your favor.

Don Schweitzer is founder and partner of The Law Offices of Donald P. Schweitzer, based in Pasadena, Calif. As a Certified Family Law Specialist and former District Attorney, he has extensive background in domestic violence, divorce and child custody issues. Prior to becoming an attorney, Mr. Schweitzer was a Police Officer for approximately 10 years. As a faculty instructor at the National Business Institute, Schweitzer teaches continuing legal education classes on the topic of ethics and advanced courses on family law. He is an active member of the Pasadena Bar Association, the Los Angeles County Bar Association, American Bar Association, and the California State Bar; and a recent contributor to Los Angeles Lawyer.

CALL ATTORNEY 530 359 8810 IF YOU HAVE A CASE AND NEED HELP!