WASHINGTON, D.C. (Sept 30,  2014):  Just as many police departments are beginning to use body-mounted videocams to fight claims of police misconduct, the American Bar Association notes that videocams recording other kinds of bodies are increasingly being employed by college men to fight claims of date rape.

Body-mounted videocam will help to defend against rape charges

In an article dated October 1st, the prestigious American Bar Association proclaims that  “Video Evidence is the Latest Defense to Rape Charges” based largely upon research by public interest law professor John Banzhaf.  The ABA reported:

“John Banzhaf, a law professor at George Washington University, researched dozens of cases of rape defendants successfully suing to repair their reputations, with evidence increasingly consisting of video introduced to show that the woman actively cooperated in the sexual encounters. ‘Changes in technology make video recording more effective and readily available,’ Banzhaf explains. ‘It’s cheap, easy to hide, and the cameras shoot well in low light.'”

VideoCams for Both Cops and Alleged Rapists?

The use of videocams in determining if charges are false or not

The ABA cited the following example: “Two college students in New Mexico had a gang rape charge against them dropped earlier this year after they turned over video of the reported victim giving lap dances in her underwear and grabbing a man’s crotch. Experts predict an uptick in video as defense in court as an unexpected consequence of the Obama administration’s toughening of sexual violence policies.”

Banzhaf notes several other examples:

  • Four students at Hofstra University were accused of gang raping a fellow student, but were freed when a cell phone video indicated that the sexual encounter was consensual.
  • A San Francisco lawyer, charged with raping three women, had the charges regarding two women dismissed because he had videotaped those encounters.
  • A man was found not guilty of an alleged gang rape after a Cook County, Illinois, jury was shown a videotape arguably showing some signs of consent as pointed out by an expert witness.
  • A videotape showed that two female students who claimed to have been raped by a male student were not intoxicated as they had claimed, and that they had led the male to their room.

Interestingly, the great majority of states do not criminalize surreptitious video recording of sexual encounters, provided sound is not also recorded.

Using videocams to record sexual activities may help males in legal defence

Ironically, in the few states which prohibit such recordings when made for prurient purposes, males may be able to defend themselves by claiming that they recorded their sexual activities only to serve as a possible legal defense, not for sexual gratification.

Unfortunately for students in California, and at a few schools which have likewise adopted a “yes means yes” standard – one which requires the male to obtain affirmative consent to every step in the sexual action – even videotaping might not be enough of a defense.

Even if the videotape shows that the woman is not protesting  – or even seeming to enjoy the activity – he might still be found guilty of date rape if he can’t prove that she affirmatively consented.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf