Credit: Peter Taylor on Flickr, under Creative Commons
(WOMENSENEWS)-- In early 2013 a woman in Manhattan, N.Y., discovered secret videos of a man she was dating having sex with multiple women. She found them on his YouTube account and asked him to explain, but he deleted the videos and went preemptively to the police to complain that she'd committed the crime of tampering with his computer files.
What happened next would turn the woman's life upside down for an entire year because rather than arresting the man, the cops charged her with a crime for violating his privacy by accessing his computer files.
She explained that the two had a long-term intimate relationship and had permitted each other to share electronic devices in the past and he had given her his account password. She also told cops she did not consent to being videotaped during sex and that the other women, too, may not have consented. (By this time, after the initial discovery, she learned that she was in some videos as well.)
Detectives took no steps to find out whether any of the women depicted had agreed to be videotaped. Instead, they put the victim who found the tapes in jail for a terrifying 15 hours.
Two other victims came foreword after that and told police they did not consent to the sex tapes, but it took almost a year for charges against the original victim to be dismissed and for the man who made the tapes--let's call him John Doe--to be arrested for his crimes.
Late last year Doe was charged with unlawful surveillance. In contrast to what happened when his victim was arrested, he was released in time for dinner. But as it so happened, Doe, a private wealth manager, was fired that same day for check fraud.
Laws Against Secret Sex Tapes
The law in New York, as in every state, forbids nonconsensual video recordings of private body parts, though some states' laws are more sweeping than others and the crimes are usually prosecuted only as misdemeanors. In New York, the nonconsensual recording of sex in a context where individuals would have a reasonable expectation of privacy has been a class E felony since 2003.
The crime of surreptitious recording is nearly impossible for victims to uncover because technology is so advanced and cameras are so small, filming can be done without detection. Even cellphones have the capacity to record high quality video without the subject knowing they're being recorded because of what's called "blackscreen" technology.
These "spy camera apps" can be downloaded with a single touch tap of a smartphone device and enable a recording to occur without detection because the phone's screen is black and appears to be off.
On the rare occasions when victims do uncover such videos, reporting the crimes to police is difficult because, unlike the reporting of a stolen purse, victims must share their most intimate moments repeatedly with police, prosecutors, lawyers, judges and jurors in order to achieve justice.
The difficulty in coming forward, alone, is good reason to encourage victims to speak out and laud (rather than arrest) them for their bravery when they discover the evidence.
It's hard to capture with words why secretly recording sexual activities is so damaging. Part of the problem is that porn culture propagandizes women (and men) to assume women enjoy being filmed during sex and that there isn't much harm in the nonconsensual recording of consensual activity.
In fact, control over the circumstances under which intimate access is granted to private body parts has long been understood by philosophers as essential to individual freedom and personal autonomy. Indeed, the denial of such control has been described as a violation of human dignity, like the dissemination of the video that caused Rutgers University freshman Tyler Clementi to take his own life, and forcing people with AIDS to reveal their medical condition.
Certain kinds of privacy are respected in law but the sexual exploitation of women has yet to find its rightful place as a serious violation of autonomy.
Boosting Public Understanding
The high profile prosecution of this case could make a real difference in the public's understanding of why secret sex tapes are so harmful. It may or may not get to court in the next couple of months, depending on delay tactics and plea bargaining.
Doe has been indicted on 17 felony counts and four misdemeanor counts of unlawful surveillance and attempted unlawful surveillance. Each felony carries a potential sentence of four years though it's unlikely the guy will see a single day behind bars because past similar cases have resulted in only probationary punishments. It would be refreshingly appropriate for the Manhattan district attorney to take a firm stance with this case and send a message that such atrocious violations of privacy are serious crimes and will not be tolerated.
Because of the law's historical lack of respect for women, Doe's victims are relieved that the prosecutor is taking the case so seriously.
They're also hopeful that jurors will roll their eyes at his feeble defense if he dares try to persuade them that he made the recordings by accident. Doe reportedly claims he kept a "doggy cam" running at all times so he could monitor his pets (which doesn't explain why some tapes were made at his victims' apartments).
In the meantime, Doe has offered no apologies or even an appreciation for his victims' pain, and he didn't mind trouncing on their First Amendment rights, either. Doe's victims have purportedly been threatened with lawsuits and "outing of victims' names" if they dare talk about the case in public.
In a better society Doe's victims would be heroes and his original victim would be getting accolades as "Citizen of the Year" for discovering the grotesque crimes of a duplicitous creep who, for more than a year, exploited the trust of women with whom he had long-term relationships and claimed to care about.
In a decent society, no victim of such an offense would have been thrown in jail and then prosecuted for nearly a year while her family and the other victims fought to right an upside-down legal system.
But this is the way it is for women in the United States. A man can claim more privacy rights in his YouTube account than a woman can claim in her vagina.
Wendy Murphy is a professor of sexual violence law at New England Law/Boston. A former sex crimes prosecutor, Murphy has written numerous law review and pop culture articles on violence against women and children. Her first book, "And Justice For Some," was released in hardcover in 2007 and was recently updated and re-released in paperback.
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