Sex, consent and secret video recordings
The law struggles to keep up with the use of technology when it comes to crime. That is shown in a recent and questionable court ruling in Ottawa, where a man was found guilty of sexual assault after he shared footage online of him having sex with two women on different occasions.
The women claimed they would not have agreed to have sex with him if they had known he was filming it with the intention of later posting it to a pornographic website. They said having the videos posted online caused them psychological harm.
The court determined that any consent for sex is vitiated if the act is recorded without a participant’s knowledge. This ruling has raised concerns in the legal community and beyond.
The law ‘is not at all settled’
As a law professor notes in a news report, “when you have otherwise consensual sexual activity that has been non-consensually recorded, it is not at all settled in Canadian law right now whether that act of recording itself can transform that sexual activity from something that is consensual to something that is non-consensual.”
In reaching the verdict, the judge looked at different types of ways that consent can be vitiated. For example, the Supreme Court of Canada (SCC) has ruled that removing or puncturing a condom without a partner’s knowledge can void consent. That principle was established in a 2014 decision where a man was charged with aggravated sexual assault after he poked holes in a condom and the female he was having sex with became pregnant.
According to the judgement, the court held that “condom protection was an ‘essential feature’ of the sexual activity, and therefore the complainant did not consent to the ‘sexual activity in question.’”
The SCC has also ruled that failure to disclose HIV-positive status can be considered aggravated sexual assault. In a 2012 decision, the Court held that disclosure of HIV status prior to sexual activity was required where there is a realistic possibility of transmission.
“If there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexual relations,” Court documents state.
No physical risk involved
Both of those rulings deal with actions that carry a real physical risk. Women could end up with an unwanted pregnancy or any partner could be given a sexually transmitted disease.
However, when we look at the issue of not being told you are being recorded as you engage in consensual sex, there's no physical risk involved. Sure, there’s reputational risk, as people may recognize you in these videos.
But there is already a charge in the Criminal Code for making intimate images publicly available without someone’s consent. Section 162.1 (1) makes it a crime to publish, distribute, transmit, sell, make available or advertise “an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct.”
And s.162 (1) makes it a crime to engage in voyeurism, stating that “Everyone commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy.”
The crimes this man committed are already regulated offences, so his actions do not need to be interpreted as some form of sexual assault.
A new level of consent
And how does a person give consent to be recorded while having sex? Do they have to agree to it on camera? If they see a camera pointing at the bed and they believe they are being recorded but the issue is never discussed, can they later say they were unaware that a video was being shot?
This ruling leaves a lot of unanswered questions.
This sexual assault conviction needs to be considered by the appellant court and perhaps guidance from Canada’s highest court. We need a clear answer on whether consent is vitiated by not knowing whether a video was made.