Posted by Curt on 24 November, 2017 at 3:42 pm. 10 comments already!



A Thanksgiving leftover. This was published Wednesday night, as people were tuning out for the holiday, but it shouldn’t be missed. Headline: “Congressman on tape tells woman he would report her to Capitol Police because she could expose his secret sex life.” Hmmm. Trumpeting the fact that he was caught on tape makes what he said seem illicit — a congressman, threatening to sic the police on a poor defenseless woman because she had damaging information on him. It’s intimidation! And it was caught on tape.

“I want your word that this ends,” he said, according to the recording [in 2015], adding: “I will be completely straight with you. I am ready if I have to, I don’t want to, but I should take all this crap to the Capitol Hill Police and have them launch an investigation. And if I do that, that hurts me potentially big time.”

“Why would you even say that to me?” the woman responded. “The Capitol Hill police? And what would you tell them, sir?”

Said Barton: “I would tell them that I had a three-year undercover relationship with you over the Internet that was heavily sexual and that I had met you twice while married and had sex with you on two different occasions and that I exchanged inappropriate photographs and videos with you that I wouldn’t like to be seen made public, that you still apparently had all of those and were in position to use them in a way that would negatively affect my career. That’s the truth.”

The occasion for that call was Barton finding out that the woman, a former lover, was sharing images and texts he’d sent her with other women he’d had relationships with. Barton told WaPo, “When I ended that relationship, she threatened to publicly share my private photographs and intimate correspondence in retaliation.” The woman told the Post that she didn’t post the nude pic of Barton that circulated online this week but admits that she did share material with some of his other former lovers, complaining that he was “manipulative and dishonest and misleading” in his interactions with her and those women. She insists that she never intended to retaliate against him by having the photo go public.

In a sane world, the main angle for WaPo’s story would be that discrepancy between Barton and the unnamed woman. Did she in fact intend to damage him by showing the world his dong or did she share material with one or more of his other exes in the expectation that they’d keep it between themselves? I can imagine jilted exes comparing notes on lies that their former paramour told them (e.g., if Barton had said to each of them, “you’re the only woman for me”), commiserating in the hurt they felt at having been played. I can’t easily imagine why those “notes” would also require sharing a crotch-level photo of a naked Barton. That feels more like an attempt to humiliate him, even if it was done in the belief that it wouldn’t leave the circle of women among whom it was shared.

Under Texas’s “revenge porn” law, there’s no formal requirement that a naked pic be made widely available for the act of sharing it to constitute a crime. Here’s the key part of the statute:

(b) A person commits an offense if:

(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner

When the story broke Wednesday, the key question had to do with subsection (2), whether Barton had a reasonable expectation that the woman to whom he sent the photo would keep it private. That is, did he send it to a lover while they were having a relationship or was he so stupid as to have sent it unbidden to a woman he was pursuing? WaPo’s story confirms that Barton *did* have an expectation of privacy; he sent it to a girlfriend. That’s news and legally important! But the story raises a new question about subsection (3), namely, did sharing the photo of Barton with some of his other exes cause harm to him? It did eventually, of course, in that someone put it on the Internet. But if the original recipient of the photo did nothing more than share it with another person, is she on the hook for what that person ended up doing with it? What if that person swore up and down that she’d never publish the photo as a condition of receiving it? Obviously you can’t dodge liability under “revenge porn” laws by simply having a third party upload your ex’s nudie pics to the ‘Net, but can you dodge liability if you shared the pic with a third party who created a reasonable expectation that they themselves would keep it private before betraying that expectation and posting it?

All of these were interesting strands that WaPo could have pursued. But they were more wrapped up in secret audio of a congressman warning an ex that he was going to get his buddies in the Capitol Hill police on her case if she exposed his secrets … even though he had every right under the law to do that. “Revenge porn” is a crime! Of course he wanted the police involved. This woman may have broken the law even if we adopt the narrative of what happened here that’s most favorable to her — she “only” shared the photo with a few other people, she had no intention of posting it publicly, she was simply annoyed that Barton had been “manipulative.” None of that might matter under the statute. If she shared Barton’s photo with a third person knowing that he wouldn’t approve and it caused harm to him because the person with whom she shared it ultimately shared it more widely, a perfectly foreseeable development, in all probability she’s guilty of a misdemeanor.

Arguably, in fact, this doesn’t even qualify as a sex “scandal.” Barton and his wife were already separated and on their way to divorce when he had this fling with the woman to whom he sent the photo and he did nothing criminal in warning her not to share it publicly. He used laughably poor judgment in sending the photo to begin with but the recipient behaved less morally by violating his confidence than he did in sending it to her. And yet, to read WaPo, you’d think he had wronged her, not vice versa. How come?

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