Revenge Porn Litigation: Bad Behavior, Abysmal Tax Treatment, and Possible Zero Net Recovery

It’s a sick, sad world where revenge porn exists. Litigation provides (inadequate) recourse. Making things worse - if possible - is the abysmal way a revenge porn victim (RPV) is taxed on their recovery.

Revenge porn is nonconsensual pornography. It includes intimate images taken with consent and distributed without the victim’s consent and explicit images taken without the victim’s knowledge. In some states, unlawful dissemination can include sexual images, intimate images, explicit images, or engaging in sexual acts where there is a reasonable expectation of privacy, with the intent to cause financial, physical, or emotional harm. Revenge porn is not rare – it’s estimated that 1 in 8 social media users in the U.S. are revenge porn targets.  

RPVs can pursue various types of civil causes of action, including intentional infliction of emotional distress, invasion of privacy, and defamation. Some states have civil laws allowing RPVs to seek compensatory damages. Other states have specific laws allowing for a private cause of action against the person sharing the private images. For example, in Colorado, RPVs can seek monetary damages of $10,000 or the actual damages and attorney fees.

Revenge porn damages include reputational harm, emotional distress, pain and suffering, lost income, medical expenses, including mental health care, and punitive damages.

Unfortunately, because of the “plaintiff double tax”, an RPV suffers twice – first by the underlying violative action itself and second by how their litigation recovery is taxed. It’s obvious which is worse – but still.

The plaintiff double tax applies to many types of nonbusiness litigation cases, including those involving no physical injuries – such as defamation, non-physical injury, emotional distress, and punitive damages. The entire award is taxable income in those cases, but the related attorney fee cannot be deducted on the victim’s tax return. Having to pay taxes on the full value of the award where the related attorney fee is not deductible is the plaintiff's double tax.

To illustrate, assume an RPV living in NYC recovers $500,000 in non-physical injury/emotional distress damages and $1,500,000 in punitive damages. Her $2,000,000 settlement proceeds are taxable, but none of her attorney fees are tax deductible. By extension, if her combined Federal/State/Local income tax rate on this award is 50% and her attorney is owed the standard 40% contingency rate, she ends up with only $200,000 – 10 cents on the dollar! Now, add in the litigation costs borne by the RPV associated with the action, and the recovery could be as little as zero ($0) or even a negative net effect. We can all agree that it is not fair compensation for such a heinous act.

An RPV might consider a Plaintiff Recovery Trust (PRT), a specially designed trust that exists to hold the litigation claim. If there is a successful recovery, the PRT will significantly increase the RPV’s after-tax recovery, perhaps by 100% or more, depending on the recovery amount and where the RPV lives.

To learn about PRTs, go to https://www.easternpointtrust.com/plaintiff-recovery-trust.

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