Videotaping sex may be best defense to rape charges

Videotaping Sex, Not Consent, May Be Best Defense Against Rape Charges; ABA Agrees; New Ohio State Rape Cases Raise Issue Again

WASHINGTON, D.C. (February 21, 2020) – A case in which two Ohio State football players are accused of rape, and in which there is a videotape of the complainant saying that the encounter was consensual, has raised the question of whether videotaping statements of apparent consent to sex is an effective legal tactic, but experts are divided, according to USA Today, the Columbus Dispatch, and other publications.

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But, says public interest law professor John Banzhaf, the American Bar Association [ABA], and a videotape of a female complainant apparently having sex voluntarily with several Minnesota football players, videotaping the actual sexual encounter, rather than just a possibly-coached or even possibly-coerced statement of consent, may be even more effective.

Video Tapes Can Defend Against Rape Charges

A 90-second videotape of the female complainant apparently having sex voluntarily with several Minnesota football players probably helped them avoid a rape charge, now for a second time, says Banzhaf, who notes video tapes can be a good rape defense.

Indeed, the ABA reported on the phenomena in an article entitled "Video Evidence is the Latest Defense to Rape Charges," based largely upon Banzhaf's research.

The Minnesota videotape, according to the police, showed the complainant apparently performing oral sex on one player, while another player is having vaginal intercourse from behind her  Still according to the police, the "female sounded somewhat intoxicated, but her coordination appeared to be normal and she did not slur her words. She does not appear to be upset by the sexual activity. She does not indicate that she wants it to stop."

The Minneapolis Police Department concluded that the sex "appears entirely consensual," and that her intoxication did not invalidate her consent.  Thus the police did not press charges because, as they said, they could not prove "that either force was used or that the victim was physically helpless as defined by law in the sexual encounter."

Clearly, videotape evidence such as this would provide a very strong defense to a charge of rape based upon an alleged lack of consent, says Banzhaf, who wonders why it isn't being used even more often.

Body Cameras To Fight Claims Of Police Misconduct

Just as many police departments are beginning to use body-mounted video cams to fight claims of police misconduct, the ABA notes that video cams recording other kinds of bodies are increasingly being employed by college men to fight claims of date rape.

In an article, the prestigious legal organization proclaims that "Video Evidence is the Latest Defense to Rape Charges" based largely upon research by 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.'"

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.

Students Guilty Of Date Rape

Thus one unexpected and ironic result of the administration's efforts to pressure colleges to more aggressively find students guilty of date rape is that more male students are likely to begin videotaping their sex encounters, usually surreptitiously.

Such video recordings have been used successfully to defeat allegations of rape, a number of  Internet web sites are recommending video taping to men as a defensive tactic, and the practice is reportedly not illegal in the great majority of states, says Banzhaf.

Since only 17 states explicitly define rape as penetration without consent, and the remainder generally require either that the woman at the time be "physically helpless" - i.e., unconscious, or unable to resist or communicate -  or that the defendant use force or the threat of force, a videotape showing no apparent manifestations of force, and a female complainant able to move even a tiny bit (i.e., perhaps drunk, but not "helpless") could at the very least create enough doubt as to produce a "not guilty" verdict.

State law in rape charges

Moreover, even in those 17 states which do require consent - Alabama, DC, Florida, Kansas, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, Oregon, Pennsylvania, Tennessee, Utah, Vermont, Washington - a videotape showing the female actively cooperating in any way in the sex act could be taken to signify her consent, even if there is no proof that she verbally agreed.

Although the Federal Wiretapping statute prohibits audio recording, it does not limit recording of video-only images.  Moreover, the great majority of the states also do not criminalize video-only taping.

In any event, the few state laws which criminalize videotaping are full of restrictions and loopholes so they may not apply where a man videotapes his own sexual activities in his own room, not for sexual gratification, but rather as a legal defense to rape.

Also, some men are apparently taking the view that they would rather be changed with the less serious crime of illegal videotaping than the much more serious felony of rape.