Custody ruling of intimate photos in Utah divorce case 'violating,' ex-wife says

A Utah judge says an ex-husband should have custody of intimate photos given to him while married — but edited photos. Yet having a third party edit those is violating, the ex-wife says.

A Utah judge says an ex-husband should have custody of intimate photos given to him while married — but edited photos. Yet having a third party edit those is violating, the ex-wife says. (Cinematographer, Shutterstock)

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SALT LAKE CITY — The divorce was difficult enough to start with.

Lindsay Marsh and her now ex-husband were married for 25 years and together for 27, she said. The process of dividing assets included negotiations and a one-day bench trial. Marsh said she made concessions because she "just wanted out."

But when 2nd District Judge Michael Edwards ordered her to surrender intimate photos of herself to a photographer for editing and then give the edited photos to her ex-husband, Marsh said she felt deeply violated.

"You don't know where to turn because you don't know the law," Marsh said. "And you have not only your ex-husband who you were married to for years (thinking) that forcing you to distribute basically porn is OK … you have his attorney that also thinks that's OK. And then you bring it in front of a judge, and he thinks it's OK."

A finding of facts dated July 7 — the day the divorce was finalized, Marsh said — states Edwards ruled that the photos were given as gifts to Marsh's ex-husband earlier in their marriage, and therefore he "has the right to retain them and the memories they provide."

But Marsh, the document continues, also has the right for her intimate photos to not be in her ex-husband's possession; so the judge ordered her to turn the images over to the original photographer.

"That person is then to do whatever it takes to modify the pages of the pictures so that any photographs of the petitioner in lingerie or that sort of thing or even without clothing are obscured and taken out, but the (photo inscriptions) are maintained for the memory's sake," the report states.

Marsh said the original photographer declined to edit the images, concerned about ethics and legal repercussions to her business.

"Being a boudoir photographer, her clients trust her with their images and privacy, (and) she takes that seriously," Marsh said.

So in a ruling dated Aug. 26, Edwards instead ordered Marsh to give the images to a different photographer for editing. She was also ordered to retain the original photos for 90 days before destroying them, in case her ex-husband wasn't satisfied with the edits, according to the divorce decree dated June 27.

Marsh said her ex-husband chose the new photographer without any input from her, and she believes the new photographer was someone he knew.

Eventually, the original photographer changed her mind and agreed to do the edits, but Marsh said she is "humiliated that she still even had to look at those photos again from years ago and had to edit the photos and was even involved in this in any way."

Marsh said her understanding based on communications between attorneys is that her ex-husband isn't happy with the edited photos, though she feels that she has complied with the court's order.

She also feels that her ex-husband's insistence on having the photos in any form is an attempt to control and hurt her.

"If all he was truly interested in was the inscriptions, he got those. ... I've complied with the court's order, even though I believe strongly that (the) order (is) violating on many levels ... and has affected my emotional and mental health," she said. "I can't imagine doing this to someone else."

Now, with little legal recourse left, Marsh said she wants to share her story so others know how intimate photos can be abused.

"I am scared, but I want to be brave and protect other people from feeling the things I have had to feel," she said. "Exes cannot be allowed to ask for such inappropriate things, their attorneys need to counsel their clients in a nonharmful, cohesive (way) ... and judges need to uphold the law they swore to protect."

She also recognizes that some people will criticize her for having the photos shot in the first place; but Marsh said what she decided to do in her marriage is no one else's business.

"That was a gift given between a husband and a wife," she said. "I protect my privacy and my body and it's not something I share (with anyone)."

Marsh's ex-husband said her account of the situation is her own perspective.

"This is not my perspective nor the perspective of an impartial judge," he said. "It appears that she has intentionally misrepresented and sensationalized several aspects of a fair proceeding to manipulate the opinions of others for attention and validation of victimhood." attempted to reach Edwards for comment, but Tania Mashburn, director of communications for the Utah State Courts system, said judges can't discuss specific cases.

Paul Cassell, a criminal law professor at the University of Utah College of Law, said it's "very strange" that a judge would require someone to turn over sensitive photos of herself to a stranger for editing.

Asset division during a divorce always involves a balancing of interests, he said, but in Marsh's case, "in my opinion, the judge here has just made a mistake in the balancing of interests and has tipped things much too far in one direction."

However, Cassell said the judge was sensitive to the risk of Marsh's photos being used to blackmail or intimidate her, given that he ordered her body and identifying features be blurred out.

Cassell said what he believes the judge missed in ordering a third party to view the photographs — even though that ultimately didn't happen — is that "each viewing is an invasion of privacy."

Cassell said sensitive photos can have shelf lives that extend far beyond what people intended when they made the images.

Marsh's case is tricky because the photos were originally shared consensually, he said, but were then ordered to be transmitted nonconsensually.

Ideally, the third party would have handled the images in a sensitive and responsible way, Cassell said; but every transmission of intimate photos creates the risk of distribution, either accidentally or intentionally.

"And these are the kinds of cats that are very difficult to put back in the bag once they get out," Cassell said.

Marsh added that anyone else going through a similar situation shouldn't be afraid to ask for help. Rely on friends, see a therapist and "fight for yourself," she said.

For her, coping means staying as positive as possible, she said.

"You deal with it the best you can with the tools that you have," Marsh said. "And for me, that's just trying to hold a heart of gratitude and be grateful for the good things you have in your life.

"This is only one small thing in my life. But I have so many more positive things to be grateful for."

Marsh's case contributes to ongoing dialogue around how sensitive photos are shared.

In August, Kobe Bryant's widow Vanessa Bryant was awarded $16 million as part of a $31 million jury verdict against Los Angeles County for deputies and firefighters sharing grisly photos of the NBA star, his 13-year-old daughter and other victims killed in a 2020 helicopter crash.

And in 2020, a former University of Utah police officer showed explicit photos of Lauren McCluskey to other officers, including in a hallway and at the scene of her murder, according to an independent investigation.

McCluskey, 21, was shot and killed on the U. campus in 2018, by Melvin Shawn Rowland, who had been harassing and blackmailing her. McCluskey went to U. police for help and sent an officer who was assigned to the case explicit photos that had been taken of her as part of the investigation. He was accused of bragging about having access to the photos and showing them to his co-workers. He was ultimately not criminally charged in McCluskey's case.

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