Is it sexual assault to secretly record intimate encounter? Ottawa case sparks debate

OTTAWA –

Secretly filming and sharing footage of consensual sex constitutes a sexual assault, according to an Ottawa judge’s 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 “sextortion,” 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.

“This is a really unique case because this is not something we’ve seen before,” said Moira Aikenhead, a law professor at the University of Victoria who specializes in technology-based gender violence.

“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.”

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 have 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’s consent was “vitiated by fraud.”

“Consenting to have sex with someone while it’s being recorded is very different type of sexual activity compared to having sex with someone when you are not being recorded,” said Suzie Dunn, a law professor at Dalhousie University who researches technology-facilitated violence.

“It’s incorporating this aspect of technology that’s so fundamental to our sex lives in the modern era.”

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’s 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.

“The question is, can psychological harm be used in the same way as bodily harm?” she said.

Given that other Criminal Code provisions could be applied, including voyeurism and non-consensual distribution of intimate images — for which Rockburn was also convicted — Robitaille said the ruling will likely raise concerns.

“Where you have offences on the books that capture the conduct that we’re concerned about, I guess the question is what are the policy reasons for expanding the scope of the sexual assault provision?”

She added that while voyeurism is a serious charge, sexual assault carries more lasting stigma for offenders.

Rosel Kim, a lawyer with the Women’s 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 “should and does” render consent void because of the emotional and psychological harm it causes.

“In 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,” she wrote in an email.

“Imagine 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.”

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.

“Co-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,” said Solomon Friedman, a partner and the vice-president of compliance at Ethical Capital Partners, which owns Pornhub’s 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 “hidden camera.”

The court heard that images of one of the women were on the site for nearly a year and were downloaded 912 times.

“She said finding out the recordings had been posted on Pornhub destroyed her,” Alder wrote in her February decision. “Her privacy was taken away by someone she trusted,” 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.

“She explained how she wondered when someone looked at her whether it was because they saw the video,” Alder said at last week’s 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.

“It certainly helps if I can say to clients and point to a case and say, ‘Look, this is something the courts would take seriously. You wouldn’t be pointed out and laughed at. You wouldn’t be told that it was your fault or that you were stupid, or thatyou were reckless,” Marshall said.

“The biggest fear everyone has is that they won’t be believed.”

This report by The Canadian Press was first published Aug.17, 2023.