Accusation of “Sexual Abuse and Sexual Violence” for Allegedly Nonconsensually Posting Bondage Pictures May Be Defamatory

From Judge Sarah Pitlyk (E.D. Mo.) yesterday in Doe v. Sutton:

This case arises from a relationship between Counterclaim Defendant John Doe and Counterclaim Plaintiff Leslie Sutton. Sutton operated a Twitter account where she posted sexual content and advertised private online subscription services. Doe initially reached out to her as a client, seeking to engage in activities such as bondage, domination, submission, and related sexual fetishes, but the parties later developed a romantic relationship based on their shared sexual proclivities. During their relationship, Doe discussed these proclivities with Sutton’s online clientele, including during livestreams hosted by Sutton. He also wore a collar while in public with Sutton.

During their relationship, Sutton took two photos of Doe, which, while not sexually explicit in a traditional sense, appealed to Sutton’s online clientele. One photo showed Doe fully clothed while wearing a collar, and the other depicted him tying Sutton’s shoe. Sutton posted one of these photos to her private Twitter account where it was visible to individuals who were aware of their relationship and sexual proclivities. Sutton posted the other photo to an account related to her online services. When Doe asked Sutton to remove the photos from her online accounts, she “immediately deleted the Twitter post, and attempted to remove” the other photo.

The romantic nature of their relationship eventually ceased. After their relationship ended, Doe reached out to Sutton and threatened to contact law enforcement unless she deleted her online accounts. Sutton complied.  This did not satisfy Doe. On August 30, 2023, he allegedly took three distinct actions against Sutton. First, he filed a lawsuit against her in the Circuit Court of St. Louis seeking damages for the dissemination of the photos, which was subsequently removed to this Court. Second, he created a website accusing Sutton of sexual abuse, which listed Sutton’s name, contact information, and private online account information (such as her anonymous online usernames). Third, he mailed a copy of the lawsuit to Sutton’s parents.

Sutton counterclaimed against Doe, and the court allowed her defamation claim to go forward based on Doe’s saying she had committed “sexual abuse and sexual violence” against him:

Doe … argues that he did not defame Sutton because the contents of his website, including allegations of sexual abuse and violence, are true…. [Doe] alleges that Sutton admitted that the image she sold to one of her followers was done without Doe’s consent. He then argues that distributing images of a person without their consent “has been recognized as a form of sexual abuse and sexual violence under various legal frameworks,” and therefore it is true that Sutton sexually abused him….

Doe’s assertion that distribution of intimate photos without consent has been considered sexual abuse and sexual violence, and therefore, his website is truthful … presents factual issues, the resolution of which is not appropriate at the motion to dismiss stage. Accepting all allegations in the Counterclaim as true and drawing all reasonable inferences in her favor, the Court finds that Plaintiff has stated a plausible claim for defamation….

The court also allowed Sutton’s public disclosure of private facts claim to go forward, based on her claim “that Doe’s website publicly revealed private information, namely the connection between her anonymous online usernames and her real identity.” This presumably satisfied the disclosure tort requirement that the disclosure “bring shame or humiliation to a person of ordinary sensibilities” because her online material was sexually themed; ordinarily, simply identifying an anonymous online user isn’t seen as legally actionable under the disclosure tort.

Justin A. Hardin represents Sutton.