Naming the Harm

There is a category of harm that legal practitioners encounter in harassment and stalking cases but rarely discuss as a standalone problem, because it tends to appear as a subsidiary outrage inside a larger and more pressing emergency. It is this: the person who harassed you retains an attorney. That attorney discovers that your PPO records, your court filings, your documented victimization, are useful to the legal theory they are building. They use them. They file them in federal court. Your name is now in federal litigation brought by the person who harassed you, in service of a constitutional argument you were never asked to be part of, advancing a theory you may find repugnant, about a statute that exists in part because of people like your harasser.

You had no notice this was coming. You have no procedural standing within the proceeding to object. You received nothing for the use of your suffering. And when you look for a cause of action — something you can file, something that says this specific thing was done to me and it was wrong and the law recognizes it as wrong — you find a gap. A carefully shaped gap, bounded on all sides by doctrines that almost cover the harm but do not quite reach it.

That gap is what this article names. Call it instrumentalized victimization in litigation: the use of a harassment victim’s documented court records as litigation material by the attorney representing the person responsible for that victimization, without the victim’s consent, over the victim’s objection, and without compensation.

The Doctrine Map: What Almost Covers This and Where Each Path Ends

The doctrinal landscape here is genuinely complex, and intellectual honesty requires treating each candidate cause of action seriously before concluding that none of them reaches the harm. The table below summarizes the analysis that follows.

Abuse of Process

Michigan recognizes abuse of process as a tort with two required elements: an ulterior purpose and a willful act in the use of process not proper in the regular conduct of the proceeding. The doctrine is designed to address the weaponization of legal process — using a lawsuit, a subpoena, or a motion not for its stated purpose but to harass, coerce, or harm.

This is the closest existing doctrine to the harm described here. Filing a federal constitutional challenge to a PPO statute while using the PPO records of victims who were never asked to participate, as procedural architecture for that challenge, has the quality of an ulterior purpose. The willful act element is arguably satisfied when the attorney had advance notice of the victim’s objection and filed anyway.

But abuse of process has a structural problem in this context: it is a cause of action for parties. The procedural mechanism for asserting it is a counterclaim or a cross-claim filed within the litigation. A non-party victim has no standing to file such a claim within the federal proceeding. They would have to bring a separate civil action — which means a new lawsuit, new filing fees, new attorneys, new timelines, and the near-certainty of a litigation privilege defense that forecloses the claim before any merits analysis occurs.

Privacy Torts

Michigan recognizes both public disclosure of private facts and intrusion upon seclusion as cognizable privacy torts. The first requires that the disclosed information be genuinely private, that the disclosure be made to the public, and that it be of a kind that a reasonable person would find highly offensive and not of legitimate public concern. The second requires a highly offensive intentional intrusion into another’s private affairs.

A harassment victim’s PPO records contain private facts: their home address, the circumstances of the harassment they experienced, the details of what was done to them, and in some cases, information about their children. Publishing those records in federal court filings without consent is a form of disclosure. A reasonable harassment victim would find it highly offensive to have their worst experiences weaponized by the attorney for the person who inflicted those experiences.

Two obstacles block the claim. First, the litigation privilege: statements made in the course of judicial proceedings are privileged in Michigan, and courts have extended this privilege to the filing of documents that contain otherwise actionable statements. Second, the legitimate public concern carve-out: courts have shown consistent reluctance to hold that information appearing in court filings loses its public-concern protection simply because its subject finds the use harmful. The policy rationale is that chilling the use of victim records in litigation would impede the truth-seeking function of courts. That rationale has merit in ordinary circumstances. It loses its justification when the attorney using the records represents the person who created them.

The Right of Publicity

The right of publicity protects against the unauthorized use of a person’s identity, likeness, name, or personal story for commercial purposes. Its home is in entertainment and advertising law — the celebrity whose image is used in an advertisement without consent, the athlete whose likeness appears on a product without a licensing agreement.

There is a version of an argument that instrumentalized victimization in litigation is a form of appropriating someone’s personal story. The victim’s harassment narrative, their court records, their documented experience of being stalked and abused — these are their story, and they are being used without permission to advance a legal theory that benefits the attorney and client who are using them.

The argument fails because the right of publicity requires commercial purpose, and courts have interpreted that requirement strictly. Constitutional litigation is not commerce in the relevant sense, even when it is funded by clients who have financial interests in its outcome. No court has extended the right of publicity to the litigation context, and doing so would require doctrinal stretching that courts would resist.

Intentional Infliction of Emotional Distress

IIED requires conduct that is extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized society. It requires that the defendant either intended to cause severe emotional distress or acted with reckless disregard of the near certainty that severe distress would result. And it requires actual severe emotional distress as damages.

The facts described here could arguably satisfy the conduct element: an attorney who is formally notified in writing that a victim’s minor child has been targeted, who acknowledges that notification, and who then forwards the notification to the person targeting the child, proceeds to file a federal lawsuit against the victim nine days after she reports his client to a child protection organization, and then uses her victimization as constitutional argument material — that is conduct a reasonable jury might find beyond all possible bounds of decency.

The litigation privilege destroys the claim. Michigan’s privilege is broad: it applies to any statements made in the course of judicial proceedings, by parties and attorneys, in pleadings, motions, briefs, and filings. It is an absolute privilege, not a qualified one. It does not yield to a showing of malice, bad faith, or even the most extreme ulterior motive. The conduct described here occurred in the context of judicial proceedings. The privilege applies. The IIED claim fails.

What Instrumentalized Victimization Actually Costs

Law does not recognize harms it cannot measure. The harms produced by instrumentalized victimization are real, concrete, and lasting — but they fall into categories that existing damages frameworks were not built to capture.

Reputational Harm

When your name appears in federal litigation brought by the person who harassed you, associated with a constitutional challenge to the statute that protects people like you, you do not get to choose what readers, employers, professional contacts, and future litigation opponents make of that association. The federal docket is public. It is indexed. It is searchable. Anyone who searches your name will find it. They will find it in a context that your harasser and their attorney chose, framing your victimization in ways that serve their legal theory, not your reputation or your truth.

Defamation requires a false statement of fact. The statements in the filing may be accurate — your name, your case number, your restraining order. They are still harmful. They reframe your victimization as evidence for your harasser’s legal argument. They place you in a public record that you never consented to enter. And they do so permanently, because federal court records do not disappear.

Safety Harm

PPO records contain information about where victims live, where their children go to school, what patterns of contact were most threatening, and what evidence was sufficient to convince a judge that protection was necessary. When that information appears in federal filings, it is available to the person the PPO was issued against. Your harasser can read the federal filing. They can clip the exhibits. They can use the detailed documentation of your life that appears in your protective order proceedings as a roadmap for continued targeting — now with the added knowledge of exactly what the court found credible and exactly what evidence exists against them.

This is not a theoretical concern. It is the operational reality of what happens when a victim’s court records are placed in a public federal docket by the attorney for the person those orders were designed to restrain.

Autonomy Harm

The most undertheorized cost of instrumentalized victimization is the loss of narrative control. When you file a PPO, you are making a specific claim about specific conduct in a specific proceeding. The record you create belongs to that proceeding. It tells the story of what was done to you in the terms that proceeding required — terms you chose, evidence you selected, framing you controlled.

When an attorney takes that record and deploys it as constitutional argument material, they reframe your story. Your victimization becomes evidence that their client was subjected to prior restraint of speech. Your restraining order becomes proof of a statute’s overbreadth. Your worst experiences become supporting material for a legal theory that treats the person who harassed you as the aggrieved party. You had no say in that reframing. You received nothing for it. And the reframing now exists in a federal court record where it will be available forever.

Emotional Harm

There is no delicate way to say this: it is a specific and distinctive injury to discover that the attorney for the person who harassed you has used your documented suffering as constitutional argument material without asking you first. It compounds the original harm in a way that is difficult to describe to people who have not experienced it. The PPO proceedings were the worst moments of your recent life. They are now exhibits in someone else’s federal case. The person responsible for those moments is not just not being held accountable — their attorney is using your account of those moments to argue that your harasser’s rights were violated.

That is not recoverable under IIED. It is not compensable under any existing damages theory. It is simply the cost of being a victim whose suffering was useful to someone else’s legal strategy. The law does not see it. Which is precisely why this article exists.

What a Cause of Action Would Require

A cause of action for instrumentalized victimization in litigation is not a call for unlimited attorney liability for the use of public court records. Court records are public for reasons that matter: transparency, accountability, the truth-seeking function of litigation. The cause of action being proposed here is narrow. It addresses a specific fact pattern in which the ordinary justifications for using public records do not apply, because the party using them represents the person who created them by harassing the victim in the first place.

The fifth element’s documentation requirement is deliberate. This cause of action should not be a vehicle for unfounded claims by parties who simply dislike having their case records appear in public litigation. The harm requirement — with evidence beyond bare testimony — filters out marginal cases while preserving the claim for fact patterns where the harm is real and documentable.

The Litigation Privilege Carve-Out

The cause of action described above cannot succeed without a modification to the litigation privilege. As currently applied in Michigan, the privilege is absolute: it immunizes attorneys for statements made in judicial proceedings, regardless of whom those statements harm and regardless of whether the person harmed had any connection to the proceeding in which the statements were made.

The carve-out required here is narrow. It would provide that the litigation privilege does not apply when all of the following conditions are met: first, the plaintiff is a non-party who was not and could not be joined to the proceeding at issue; second, the attorney using the plaintiff’s records represents the person responsible for the conduct documented in those records; third, the plaintiff had communicated a specific objection to the use of their records before or contemporaneously with the filing; and fourth, the use was not necessary to the merits of the legal claim being litigated — that is, alternative means of making the same legal argument were available that did not require the exploitation of a specific victim’s documented court history.

That fourth condition matters. It preserves the privilege in cases where a victim’s records are genuinely indispensable to a legitimate legal argument — where there is no other way to make the point. It removes the privilege only where the records were used for convenience, for rhetorical force, or for the instrumental value of the victim’s suffering, when other means of argument were available and the victim had asked not to be used.

Compensation as a Structural Argument

The question of whether victims should be compensated for the use of their documented suffering in litigation sounds, on first encounter, mercenary. It is not. It is a structural observation about how value flows in the transaction being described.

When an attorney uses a victim’s documented harassment experience as constitutional argument material in federal court, that experience has litigation value. It is being used because it is useful. It provides procedural architecture. It supports the constitutional theory. It fills factual gaps that abstract argument cannot fill. The value is real — real enough that the attorney chose to use it rather than something else, real enough that it appears in the brief, real enough that it was submitted to a federal judge as relevant and probative.

The attorney and client retained that value. They extracted it from the victim’s documented suffering at no cost to themselves. The victim bore every cost of the use — reputational, emotional, safety, autonomy — and received nothing in return. Not compensation. Not notice. Not consent. Not even acknowledgment that their suffering had been taken and used.

That asymmetry — in which one party extracts value from another party’s most painful experiences, at no cost, without permission, and over that party’s express objection — is what compensation addresses. It is not about punishing attorneys for making legal arguments. It is about requiring that if you are going to use someone’s documented victimization to build a federal constitutional argument, you have to ask first. And if they say no, you have to find another way to make your argument, one that does not require taking something from someone who asked you not to take it.

That is, in the end, a very simple proposition. It is what informed consent looks like in the litigation context. It is what respect for victims’ autonomy looks like when translated into procedure. The law has not caught up to it yet. But the fact pattern that demands it now exists in the public record, fully documented, across multiple cases and multiple victims.

Why This Gap Will Close — and What It Takes to Close It

Legal gaps close in one of three ways: a court confronts a fact pattern compelling enough to extend or modify existing doctrine; a legislature identifies a harm that the courts have failed to address and creates a statutory remedy; or the documented record of that harm becomes so complete and so public that the political cost of inaction exceeds the political cost of reform.

The fact pattern documented in this article and in the related Clutch Justice reporting is compelling enough for the first path. The record now exists across eight PPO proceedings, two federal cases, one counterclaim, and multiple published articles — each of which is timestamped, sourced to primary documents, and indexed in both court records and search engines. A court that reads this record will see the gap clearly. The question is whether the procedural vehicle for presenting it to a court materializes before the underlying litigation resolves.

The second path — legislation — is slower but more durable. Michigan has shown that it will act on procedural abuse when the record demands it: the Uniform Public Expression Protection Act, effective March 24, 2026, is evidence of a legislature that was paying attention to how litigation was being weaponized against speakers. The weaponization of victims’ documented suffering by attorneys for their harassers is the same problem on a different axis. The legislature that addressed one should be capable of addressing the other.

The third path is already underway. This article is part of it.

What it takes to close the gap is documentation. Complete, timestamped, sourced-to-primary-documents documentation of a harm that the law does not yet recognize — built in real time, published as a matter of public concern, and placed in front of every institution capable of acting on it. Courts, bar authorities, legislators, law review editors, and practitioners who work with harassment victims all need to see this fact pattern clearly before any of them can name it and address it. The documentation is what makes that possible.

The gap has a name now. Your suffering is not free. The law has not caught up to that yet. It will.