Family courts can deter people threatened with being outed

On 15 April 2018 Eurovision winner Conchita Wurst felt the need to reveal her HIV status to the world via Instagram. However, her decision to reveal her HIV status was not because she felt the need for such wholly personal information to be out in the public domain but due to a threat from an ex-boyfriend to out her. Whilst impressive that she chose to take matters into her own hands, it is unfortunate that the abhorrent stigma surrounding HIV is still present and the outing of someone diagnosed with the same can be used as a threat.

You may also remember that actor Charlie Sheen in 2017 also felt the need to reveal his HIV status to the world due to him being blackmailed by people threatening to out him.

However, this is not just something that happens to those in the public eye.

It may feel that there is no recourse to someone who is being threatened with being outed, however, consideration should be given to whether the Family Courts can step in and assist.

I once represented a client in Court whose ex-partner had also threatened to disseminate his HIV status. The threat included placing the information on social media addressed to my client’s family on the day of a family wedding knowing full well that my client’s family had only just come to terms with his homosexuality. I successfully obtained a Non-Molestation Order for my client on an ex parte basis.

Non-Molestation Orders are governed by Section 42 of the Family Law Act 1996. A Non-Molestation Order prohibits a person (’the Respondent’) from molesting another person who is associated with the Respondent (‘the Applicant’).

There is no statutory definition of the term ‘molesting’ and, contrary to popular belief, the act of molesting someone takes more forms than just physical abuse. The law has now caught up with the acts of abuse that can be perpetrated upon a person to include emotional, psychological, financial abuse, and coercive and controlling behaviour. However, prior to the change in the law, the Family Courts were able to use their discretion as to what can be classed as ‘molestation’. This included a Respondent hanging posters about the Applicant on the railings of the school where she worked (Horner v Horner [1982] 2 WLR 914) and sending nude photographs of the Applicant to the newspapers (Johnson v Walton [1990] 1 FLR 350).

In deciding whether to grant a Non-Molestation Order, Section 42(5), FLA 1996 states that the Court shall have regard to all the circumstances, including the need to secure the health, safety and well-being of the applicant and of any relevant child.

Referring back to my client, the fear and upset he had at thinking that his HIV status would be broadcast on social media, to his family with whom he had only just been able to reconnect, and on a special celebratory day was overwhelming. The effect on his health and wellbeing was noticeable and it was fortunate that the Family Court were able to see that outing his HIV status was an act of emotional/psychological abuse. In some instances, such information being out in the public domain may also affect a person’s safety and could also be deemed controlling and coercive behaviour. Such behaviour, therefore clearly meets the classification of ‘molestation’.

The concern of some Applicants may be that they do not wish to alert the Respondent to their application as it is likely to make the Respondent carry out their threat before a Hearing can take place. However, there are such things as ‘ex parte’ Orders. If an Order is made ‘ex parte’ then it is made without notice and warning to the Respondent.

The President of the Family Division in his Practice Direction on the duration of ex parte Non-Molestation Order dated 18 January 2017 made it clear that in making an ex parte application:

'Irrespective of the subject matter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if:

(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or

(b) there is a real risk that, if alerted to what is proposed, if ‘tipped off’, the respondent will take steps in advance of the hearing to thwart the court’s order or otherwise to defeat the ends of justice. In an appropriate case this can justify the grant of a non-molestation injunction without notice, lest the respondent, having been served with an application, further molests his (or her) victim or exerts pressure on her (him) to abandon the proceedings.'

In the case of Conchita Wurst, the threat by her ex-boyfriend to out her HIV status would meet the test for an ex parte application as clearly ‘tipping him off’ to the steps she would be seeking to take could result in him taking those steps prior to a Hearing taking place and prior to any Order being made for protection.

Although this in no way wholly prevents the Respondent from still outing the Applicant and that information being out there (as there are some out there who do not care about abiding by Court Orders and once that information is out there is no way to retrieve it), it is hoped that the punishment for breaching an Order should act as a good deterrent or can go someway in giving the Applicant time to be able to tell those closest to them about the diagnosis.

Sherma Polidore is a family law specialist at Setfords Solicitors