Opening Statements

Video evidence is the latest defense to rape charges

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Guy with a TV camera for a head

Illustration by J. Manzo

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.

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."

"I am never opposed to accurate videotape evidence, as it often helps resolve difficult factual disputes," says professor Rory Little of the University of California's Hastings College of the Law in San Francisco, who, by example, cites police officers wearing "bodycams" and police cars sporting traffic-stop cameras. "However, I think we need to be extremely cautious about competing privacy concerns. ... Almost nothing is more private in our culture than sexual relations. I certainly think it is a bad idea, legally as well as culturally, to incentivize surreptitious videotaping of any kind, let alone of sexual encounters. States that currently do not make this illegal should reconsider." Little notes that surreptitious videotaping in nonpublic places is illegal in California.

Surprisingly, taking video—even surreptitiously—is legal in a majority of states, provided the footage doesn't contain audio (which can trigger wiretapping statutes), Banzhaf says. But, he adds, even if it were illegal, some men consciously decide that they'd rather be charged with the less serious crime of illegal video recording than felony rape.
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