Doe v. Fritch

239 N.E.3d 1259

2024 IL App (4th) 230585

Jane DOE, Plaintiff-Appellee,

v.Andrew FRITCH, Defendant-Appellant.

NO. 4-23-0585

Appellate Court of Illinois, Fourth District.

Filed May 7, 2024

Appeal from the Circuit Court of Winnebago County, No. 21L275. Honorable Lisa Renae Fabiano, Judge Presiding.

Andrew J. Vella, of Rockford, for appellant.

Jesse P. Hodierne, of Prairie State Legal Services, Inc., of Rockford, for appellee.

OPINION

JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Jane Doe, brought a cause of action against defendant, Andrew Fritch, under the Civil Remedies for Non-consensual Dissemination of Private Sexual Images Act (Civil Remedies Act) (740 ILCS 190/1 through 35 (West 2020)), alleging defendant made a digital video recording of plaintiff engaged in a sex act and then disseminated the video without plaintiff's consent. The trial court granted partial summary judgment in plaintiff's favor as to liability and, following a hearing on damages, awarded plaintiff $4300 in economic damages, $150,000 in emotional distress damages, $150,000 in punitive damages, and $12,485 for reasonable attorney fees. Defendant appeals, challenging both the court’s grant of partial summary judgment in plaintiff's favor and its awards of damages and attorney fees. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In September 2021, plaintiff filed her complaint against defendant under the Civil Remedies Act. She alleged defendant made a digital video recording of her that showed her body and face and depicted her "engaging in oral sex" with defendant while "touching or fondling her breast for the purpose of sexual gratification or arousal." The video was made in the privacy of plaintiff's home while only she and defendant were present. Additionally, it was made at defendant’s request and following his representation to plaintiff that "he would not share the digital recording with any third party."

¶ 4 Plaintiff alleged that, despite asserting he would not share the video, defendant later uploaded it to the pornographic website "www.xhamster.com," where it was viewed at least 54,722 times. Alternatively, she alleged defendant "disseminated the digital recording to a third party who caused the video to be uploaded to [that website]."

¶ 5 According to the complaint, the video was first published on the xHamster website in or around March 2020 by an account with the username "Horny_andwan-nacum." On January 4, 2021, the video was published to the same website for a second time by an account with the username "RockfordPervert." Plaintiff alleged, on information and belief, that defendant used both usernames to upload the video. Additionally, she asserted the January 4, 2021, publication occurred after she asked defendant on January 3, 2021, to leave her alone and to stop messaging her.

¶ 6 Plaintiff further alleged that the video was published "with various titles, descriptions, or captions" that contained her personal information, including her first and last names, the city and state where she lived, and the fact that she was a single mother. One caption indicated where the video was taken, stating: "Single mom of 3 sucks my c*** out in her kitchen." Plaintiff maintained she was identifiable in the video by both her physical appearance and the titles, descriptions, or captions displayed on the website in connection with the video.

¶ 7 Plaintiff alleged that she did not consent to the dissemination or publication of the video. She asserted defendant intentionally (1) published the video on the xHamster website or (2) disseminated the video to a third party, knowing she was identifiable in the video by her physical appearance and that she did not consent to its dissemination.

¶ 8 Plaintiff stated she suffered harm as a result of defendant’s actions and asked for relief, including (1) economic and noneconomic damages proximately caused by defendant’s actions, including emotional distress damages, (2) punitive damages, and (3) reasonable attorney fees and costs. She asserted that after she discovered that the video had been published online, she also discovered that entering her name in common Internet search engines produced results for several pornographic websites, in addition to www.xhamster.com. Plaintiff set forth a list of 26 "pornographic sites" where she "discovered the digital recording, URL links to the digital recording, and/or still thumbnail images from the recording." As a result, she "hired a company, GuaranteedRemovals.com [(Guaranteed Removals)], to remove content from search engine results, including URL links that led to websites where the digital recording was viewable." Plaintiff stated she engaged Guaranteed Removals to remove at least 17 links, at a cost of $250 per link up to a maximum of $4250, plus 1.5% interest per month.

¶ 9 Plaintiff claimed she expended time and resources requesting that the video be removed from www.xhamster.com and other websites, as well as searching her name in various search engines. Although she was successful in removing the video from several websites, still images or thumbnail pictures from the video remained visible online. Plaintiff maintained she lost income because she was not able to accept jobs as a "Shipt shopper" at the grocery store where defendant worked. She also suffered emotional distress, including (1) embarrassment from the video having been viewed by both strangers and people she knew, (2) the loss of, or damage to, close personal relationships as a result of the video being discovered, and (3) fear and anxiety regarding the safety of herself and her children due to her personal information being shared online with the video.

¶ 10 In February 2022, defendant filed a response to plaintiff's complaint and invoked his fifth amendment (U.S. Const., amend. V) privilege against self-incrimination to nearly all of the allegations of the complaint. The record shows he also provided similar responses during discovery to requests to admit, requests for interrogatories, and requests to produce propounded by plaintiff.

¶ 11 In April 2022, plaintiff filed a motion for summary judgment. She argued defendant admitted or "effectively admitted" all of the allegations in her complaint where he did not deny the material allegations against him and, instead, invoked his fifth amendment privilege against self-incrimination. Plaintiff attached to her motion a copy of her complaint, defendant’s response to her complaint, and defendant’s discovery answers. In July 2022, defendant responded to plaintiff's motion, arguing his invocation of his fifth amendment privilege was not the equivalent of an admission to the allegations against him. He asserted plaintiff presented no affirmative evidence that would entitle her to summary judgment. In November 2022, the trial court denied plaintiff's motion but stated she was "not prevented from filing a future motion for summary judgment or other motion requesting judgment on the pleadings."

¶ 12 In December 2022, plaintiff filed a second motion for summary judgment, arguing no genuine issue of material fact existed. Plaintiff asserted that a cause of action under the Civil Remedies Act required her to establish that (1) she was the depicted person in a private sexual image, (2) she was identifiable to a reasonable person in the image, (3) the private sexual image was intentionally disseminated without her consent, and (4) she suffered harm from the dissemination. She maintained each element of her claim was established through her own affidavit and its attached exhibits, all of which were attached to her motion. Plaintiff also argued that the trial court could draw a negative inference from defendant’s invocation of his fifth amendment privilege and consider defendant’s silence as additional supporting evidence of her allegations against him.

¶ 13 In her affidavit, plaintiff made averments that supported the allegations of her complaint. She stated she met defendant in the summer of 2018. They exchanged phone numbers and e-mail addresses and "corresponded numerous times via text message and email." In 2019, the two had an intimate relationship, and defendant asked "if he could record a video of [plaintiff] performing oral sex on him." Defendant made such a video in the kitchen of plaintiff's residence while only the two of them were present. Plaintiff stated she had seen the video and that it showed her body and face, along with her "touching [her] breast for the purpose of sexual gratification or arousal." Plaintiff told defendant she "did not want the video to be shared with anyone else," and defendant represented to plaintiff that "he would not share the video."

¶ 14 Plaintiff stated she and defendant stopped seeing one another after she "found a more serious boyfriend." Later, she found that the video defendant recorded had been posted "on a pornographic website called ‘xHamster.com.’ " She learned that the video had been posted twice to the website, once in March 2020 and a second time on January 4, 2021. The January 4, 2021, posting occurred one day after plaintiff asked defendant to stop contacting her via text messages and e-mail. Captions on the website included her personal information, such as her name, her location, her status as a single mother, and the location where the video was recorded in her residence. Plaintiff attached screenshots she took of the video posted on the xHamster website to her affidavit.

¶ 15 After discovering that the video had been posted online, plaintiff confronted defendant via text message, and he "tacitly" admitted that he posted the video and asked plaintiff not to contact the police. Plaintiff attached her text message communications with defendant as an exhibit to her complaint. In one communication, defendant indicated he did not make the March 2020 posting, stating "That’s not me!! I swear to god and anyone! That’s a repost!! I deleted everything!!" After plaintiff threatened to...