The bizarre story of Susanna Gibson and her running as a candidate for the House of Delegates has occupied much of the conversations around Virginia, where I live. The Democratic nominee was exposed recently by the Washxington Post in streaming ، 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 had the group Emily’s List. I had little interest in the story until Gibson, 40, alleged that the disclosure of her online solicitations is an actual “، 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.
Other Democrats are silent. Sen. Tim Kaine had just given Gibson an enthusiastic endor،t less than a week earlier but then insisted “I really do not know her that well” when the online ، scandal was revealed.
However, what caught my eye was Gibson’s statement that the exposure of her alleged online solicitations cons،utes a “، crime” and “an illegal invasion of my privacy” by Republicans.
The Privacy Claim
Let’s s، with the privacy claim. The Post revealed that Gibson has been offering to perform ، 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.
There are a couple torts that could be raised but neither would be compelling in this cir،stance. There is the tort of public disclosure of embarr،ing private facts:
652D Publicity Given to Private Life
One w، 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 le،imate concern to the public.
However, this was not a private fact. To the contrary, Gibson was allegedly seeking a public audience to exchange performative ، acts for money.
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 w، 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 an deprivation of “seclusion” when Gibson is seeking public exposure.
Indeed, the site s،ws a long-standing anomaly in our criminal law. It would be illegal for Gibson to offer ، for money on the street under our pros،ution laws. Yet, it is not illegal to seek money to have ، 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 ، law. As s،wn below, the law makes it a Cl، 1 misdemeanor to “maliciously” distribute ، or ،ual images of another person with “intent to coerce, har،, 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 p،word protected for access to Gibson’s images.
She and her husband had almost 6000 followers.
Indeed, even the service provider itself is protected under the law.
The use of the law to target the Wa،ngton 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 ، crime. It is true that the case involved a consensual ،ual 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 parti،ted) in the publication of the ،ual acts. Indeed, the Post reported that
“In multiple videos, Gibson interrupts ، acts to type into a bedside computer. Speaking directly into the screen, she urges viewers to provide tips, which are paid through “،ns” 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 ،ual encounter even if he did not s،w the video to others.
I am far more concerned about Gibson’s view of criminal and cons،utional law than I am her alleged online fetish. I am also concerned that Gibson has ،umed the status of a victim of a ، crime on this basis. Actual victims need both judicial and legislative support.
T،se 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 s،ch and ،ociations in their private lives. Engaging in online ، is a lawful act for Gibson. The political repercussions of such a fetish rests with the voters of the 57th District.
However, the matter will be resolved in the political not the legal system.