Secretly filming and sharing footage of consensual sex constitutes a sexual assault, according to an Ottawa judgeB次元官网网址檚 recent ruling, sparking a debate over how courts view consent in cases involving technology.
Views on the issue have been evolving in recent years, spurred by high-profile cases, particularly involving teenagers, of revenge porn and B次元官网网址渟extortion,B次元官网网址� which involves threatening to share evidence of sexual activity unless demands are met.
The federal government added a Criminal Code charge for the non-consensual sharing of intimate images online, and some provincial legislatures have changed laws in the hopes of offering victims more recourse through civil claims.
But the recent case out of Ottawa raises a new question.
B次元官网网址淭his is a really unique case because this is not something weB次元官网网址檝e seen before,B次元官网网址� said Moira Aikenhead, a law professor at the University of Victoria who specializes in technology-based gender violence.
B次元官网网址淲hen 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.B次元官网网址�
Jacob Rockburn was sentenced last week to seven years in prison, less time served, after being found guilty in February of sexually assaulting two women, as well as distributing the images online.
Each of the women had consensual sex with Rockburn but later learned that he had filmed them without their consent and uploaded videos to Pornhub, a popular pornography website, using degrading titles.
Both women, whose identities are protected by a publication ban, told the court they would have not consented to sex had they known they were being recorded. They said posting the videos online caused them psychological harm.
Ontario Court Justice Ann Alder found Rockburn guilty on both counts of sexual assault, saying in her decision that the womenB次元官网网址檚 consent was B次元官网网址渧itiated by fraud.B次元官网网址�
B次元官网网址淐onsenting to have sex with someone while itB次元官网网址檚 being recorded is very different type of sexual activity compared to having sex with someone when you are not being recorded,B次元官网网址� said Suzie Dunn, a law professor at Dalhousie University who researches technology-facilitated violence.
B次元官网网址淚tB次元官网网址檚 incorporating this aspect of technology thatB次元官网网址檚 so fundamental to our sex lives in the modern era.B次元官网网址�
In her decision, Alder relied on analysis from the Alberta Appeal Court in 2021, which discussed the notion that secretly recording a sexual encounter could meet the legal threshold for sexual assault.
The Supreme Court of Canada has already ruled that removing a condom without a partnerB次元官网网址檚 knowledge can void consent. It has also ruled that failing to disclose that one is HIV-positive when there is realistic possibility of transmission can be considered aggravated sexual assault. In response to advocacy by the LGBTQ+ community, the Liberal government has moved to limit such prosecutions due to evolving science.
Danielle Robitaille, a managing partner at Toronto-based criminal law firm Henein Hutchison Robitaille, said the issue warrants study by a higher court. She noted that the Supreme Court has made those previous rulings based on the risks of physical harm, such as pregnancy or disease.
B次元官网网址淭he question is, can psychological harm be used in the same way as bodily harm?B次元官网网址� she said.
Given that other Criminal Code provisions could be applied, including voyeurism and non-consensual distribution of intimate images B次元官网网址� for which Rockburn was also convicted B次元官网网址� Robitaille said the ruling will likely raise concerns.
B次元官网网址淲here you have offences on the books that capture the conduct that weB次元官网网址檙e concerned about, I guess the question is what are the policy reasons for expanding the scope of the sexual assault provision?B次元官网网址�
She added that while voyeurism is a serious charge, sexual assault carries more lasting stigma for offenders.
Rosel Kim, a lawyer with the WomenB次元官网网址檚 Legal Education and Action Fund, known as LEAF, said she welcomed the court taking the impact of the crimes seriously.
Kim said she would be interested to see how higher courts handle the issue, given that the offence of sharing sexual images without consent is relatively new.
Elaine Brooks-Craig, a Dalhousie University professor who specializes in sexual-assault law, said secretly recording someone having sex B次元官网网址渟hould and doesB次元官网网址� render consent void because of the emotional and psychological harm it causes.
B次元官网网址淚n a world in which platforms like Pornhub are as popular among some demographics as Facebook, the harm caused just by creating non-consensual sex videos is profound,B次元官网网址� she wrote in an email.
B次元官网网址淚magine living with the knowledge that someone has a video of you having sex, that you did not want created, that could at any moment be distributed globally.B次元官网网址�
In a statement, a spokesperson for Pornhub said the videos were removed when it was made aware of them and that the company helped police and prosecutors with their investigation.
B次元官网网址淐o-operation of this kind, along with ongoing technical innovation, is essential in combating the ever-evolving problem of non-consensual intimate images, faced by all content sharing platforms,B次元官网网址� said Solomon Friedman, a partner and the vice-president of compliance at Ethical Capital Partners, which owns PornhubB次元官网网址檚 parent company, MindGeek.
Friedman also the images in question were on the site before it removed all videos uploaded by non-verified users in late 2020. The site no longer allows individuals to search for videos under the tag B次元官网网址渉idden camera.B次元官网网址�
The court heard that images of one of the women were on the site for nearly a year and were downloaded 912 times.
B次元官网网址淪he said finding out the recordings had been posted on Pornhub destroyed her,B次元官网网址� Alder wrote in her February decision. B次元官网网址淗er privacy was taken away by someone she trusted,B次元官网网址� and she now suffers from post-traumatic stress disorder, anxiety and depression.
Court also heard the video of the second woman was viewed more than 9,000 times and led to her attempting suicide.
B次元官网网址淪he explained how she wondered when someone looked at her whether it was because they saw the video,B次元官网网址� Alder said at last weekB次元官网网址檚 sentencing.
Kathryn Marshall, a Toronto-based lawyer who has advocated for protecting women and girls from violence, said courts and police have too often dismissed the psychological harm in cases like this, and complainants often avoid coming forward because they feel ashamed and humiliated.
A decision such as this sends the message that such crimes are taken seriously, she said.
B次元官网网址淚t certainly helps if I can say to clients and point to a case and say, B次元官网网址楲ook, this is something the courts would take seriously. You wouldnB次元官网网址檛 be pointed out and laughed at. You wouldnB次元官网网址檛 be told that it was your fault or that you were stupid, or that B次元官网网址� you were reckless,B次元官网网址� Marshall said.
B次元官网网址淭he biggest fear everyone has is that they wonB次元官网网址檛 be believed.B次元官网网址�
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