Secretly filming and sharing footage of consensual sex constitutes a sexual assault, according to an Ottawa judge害羞草研究所檚 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 害羞草研究所渟extortion,害羞草研究所� 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.
害羞草研究所淭his is a really unique case because this is not something we害羞草研究所檝e seen before,害羞草研究所� said Moira Aikenhead, a law professor at the University of Victoria who specializes in technology-based gender violence.
害羞草研究所淲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.害羞草研究所�
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 women害羞草研究所檚 consent was 害羞草研究所渧itiated by fraud.害羞草研究所�
害羞草研究所淐onsenting to have sex with someone while it害羞草研究所檚 being recorded is very different type of sexual activity compared to having sex with someone when you are not being recorded,害羞草研究所� said Suzie Dunn, a law professor at Dalhousie University who researches technology-facilitated violence.
害羞草研究所淚t害羞草研究所檚 incorporating this aspect of technology that害羞草研究所檚 so fundamental to our sex lives in the modern era.害羞草研究所�
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 partner害羞草研究所檚 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.
害羞草研究所淭he question is, can psychological harm be used in the same way as bodily harm?害羞草研究所� she said.
Given that other Criminal Code provisions could be applied, including voyeurism and non-consensual distribution of intimate images 害羞草研究所� for which Rockburn was also convicted 害羞草研究所� Robitaille said the ruling will likely raise concerns.
害羞草研究所淲here you have offences on the books that capture the conduct that we害羞草研究所檙e concerned about, I guess the question is what are the policy reasons for expanding the scope of the sexual assault provision?害羞草研究所�
She added that while voyeurism is a serious charge, sexual assault carries more lasting stigma for offenders.
Rosel Kim, a lawyer with the Women害羞草研究所檚 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 害羞草研究所渟hould and does害羞草研究所� render consent void because of the emotional and psychological harm it causes.
害羞草研究所淚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,害羞草研究所� she wrote in an email.
害羞草研究所淚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.害羞草研究所�
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.
害羞草研究所淐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,害羞草研究所� said Solomon Friedman, a partner and the vice-president of compliance at Ethical Capital Partners, which owns Pornhub害羞草研究所檚 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 害羞草研究所渉idden camera.害羞草研究所�
The court heard that images of one of the women were on the site for nearly a year and were downloaded 912 times.
害羞草研究所淪he said finding out the recordings had been posted on Pornhub destroyed her,害羞草研究所� Alder wrote in her February decision. 害羞草研究所淗er privacy was taken away by someone she trusted,害羞草研究所� 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.
害羞草研究所淪he explained how she wondered when someone looked at her whether it was because they saw the video,害羞草研究所� Alder said at last week害羞草研究所檚 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.
害羞草研究所淚t certainly helps if I can say to clients and point to a case and say, 害羞草研究所楲ook, this is something the courts would take seriously. You wouldn害羞草研究所檛 be pointed out and laughed at. You wouldn害羞草研究所檛 be told that it was your fault or that you were stupid, or that 害羞草研究所� you were reckless,害羞草研究所� Marshall said.
害羞草研究所淭he biggest fear everyone has is that they won害羞草研究所檛 be believed.害羞草研究所�
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