Unauthorized and unlawful “sexting” has been made the subject of criminal conduct. However, this may not necessarily give the victim any compensation or financial redress for loss or embarrassment. For that to occur, the victim must look to the civil law.
The English equivalent of our Supreme Court (High Court) decided that the victim of an unlawful “sexting” message did have a right to damages under the common law which applies equally in England as it does in Australia.
The background to the English High Court case was that the Plaintiff, a woman now aged 23, sued a residential boarding school because of sexual assault by one of the teachers who also exchanged text messages of a sexual content or “sexting” with her.
The High Court Judge found the allegations of sexual assault proved. However, the uniqueness of the decision was that the High Court Judge also found the school liable for the teacher’s role in the “sexting” and therefore liable to pay damages to the Plaintiff.
The claim for compensation for “sexting” was based upon the old English civil wrong of intentionally causing physical or psychological harm. This civil wrong or “tort” developed from the 1897 case of Wilkinson v. Downton where the defendant, as a sick practical joke, told the woman that her husband had been involved in a serious accident which was untrue. The joke badly backfired when the wife went into nervous shock. Mrs. Wilkinson then successfully sued Mr. Downton.
The English Supreme Court (this used to be the House of Lords) examined this legal cause of action in 2015 in Rhodes v. Opo  UKSC 32 where the Law Lords held that the tort existed and had three elements:
i) “Conduct” – conduct or words directed towards the claimant that was not justified or for which there was no reasonable excuse.
ii) “Mental” – an intention to cause severe mental or emotional distress (or physical harm).
iii) “Consequence” – physical injury or a recognized psychiatric illness.
In the case brought by the woman against the residential boarding school, element iii) was straightforward on the psychiatric evidence. In relation to element i), the trial judge held that this was made out due to Willock emotionally manipulating the plaintiff and encouraging her to send indecent images of herself to him and engaging in sexual banter in the texts.
The teacher, Willock, defended the plaintiff’s arguments upon the basis that he had no actual intention to cause her distress. The trial judge relied upon the Supreme Court decision in Rhodes where the Supreme Court held that certain statements and actions had such obvious consequences or potential consequences that the perpetrator could not realistically say that those consequences were unintended. The trial judge said that it must have been obvious to Willock that the elicit relationship would, in the end, cause nothing but harm to the vulnerable claimant who was nearly 40 years younger than her groomer and those consequences must have been entirely clear and obvious to Willock.
The English decision is interesting. It may well be that the decision on “sexting” was overshadowed by the actual physical abuse. What the Court has done is to introduce an objective element into the tort of intentionally causing physical or psychological harm. This may cause a future problem. Groomers are frequently people who subjectively believe that what they are doing is morally right and harmless. Are such persons to be held liable under this new tort? Probably so. It is interesting to also note that Willock did not effectively raise consent as a defence. The whole issue of consent is relevant to the first element of the tort of conduct and whether or not such conduct was not justified or for which there was no reasonable excuse.
What seems clear, however, is that in relation to instances where there is great disparity of age, and with a defendant who is clearly grooming someone who is knowingly vulnerable, the victim may well have a right to sue the groomer for damages in addition to any criminal penalty that may apply.
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