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 i...
“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.”
Seems pretty cut and dry to me. If one participant is not made aware of and does not consent to being filmed, your sexual encounter is now not consensual.
It’s ultimately an issue with single party consent laws. In many places only one person has to consent to being recorded, even if they’re the person recording.
This is a good thing for many reasons, like recording your boss flagrantly violating labor laws and such, but I’m sure the issue is that there isn’t a legal caveat for the sex tapes.
I am surprised that Canada doesn’t have a separate revenge porn law like the US does, though.
We do. The debate in the article is about whether the non-consensual filming of the sex act does or does not invalidate the consent given for the initial sex act, making it a sexual assault.
It’s ultimately an issue with single party consent laws
It’s not even that, though. That may be in question, but the question here is whether or not an unlawful deed towards a party (“revenge porn” is illegal) should invalidate other agreements made between the same two parties.
To put it another way, if I hire you to fix my plumbing, and then you steal my car on your way out the door, should I be on the hook to pay you for your plumbing services? The theft of my car is unquestionably a legal violation, and something I am not welcoming of, but what is being questioned is if that act is related to our plumbing agreement.
Earlier comments in this thread suggest that if I knew you were going to steal my car I would not have hired you to fix my plumbing, and therefore the plumbing agreement must also be null and void. But the courts aren’t so sure – that there may be more nuance to that.
I don’t agree. I don’t think one party consent should be so sacrosanct that you can film a person having sex without their permission and not catch problems for doing so. Not ancillary issues like psychological trauma (which of course matter in their own right and should carry consequences), the act itself should be a crime, that’s a huge violation. I’m sure we can find a reasonable legal distinction between that and recording a phone call.
It is strange to you because it does have revenge porn laws. What it does not have is an automatic invalidation of the contract entered into to engage in the sexual activity itself if revenge porn laws are violated.
To use another instance of this, if we agree that you will fix my plumbing, and then you steal my car, the stealing of the car is very much against the law, but breaking that law does not invalidate the contract for the plumbing work. @grte above thinks that if you knew the person was planning on stealing your car, you would have never agreed to have them work on your plumbing, and thus the plumbing contract should also become null and void in every case. That is what Canada does not have. Nor it is likely anywhere else does either.
It’s not, though. Consent was given. There is some responsibility on those entering into an agreement to do their due diligence. Precedence dictates that it situationally dependent and up to the courts to decide on a case-by-case basis. “I didn’t realize” isn’t a good defence without something of substance to go along with it.
Consent was given to a different act than the perpetrator was intending on having. It shouldn’t fall on one to confirm that every sex act one participates in is not being filmed against one’s wishes, that should (pretty obviously, I think) require notification of intent.
Consent was given to a different act than the perpetrator was intending on having.
Yes, if there is something of substance to prove that is the case then the courts will undoubtedly side in your favour. But “I didn’t know” is not sufficient to demonstrate that the intent differed. There are inherently many things one will not know about the situation. The obligations of an agreement are not invalided just because something you didn’t expect happened. The nuance must be taken into account.
It shouldn’t fall on one to confirm that every sex act one participates in is not being filmed against one’s wishes
It is the onus of one entering into an agreement to do their due diligence. Combing the room for cameras may be beyond reasonable, but letting it be known that your privacy is valued when settling on the terms of the agreement is a reasonable expectation. Certainly, if that is spelled out in the agreement then there is an expectation that it will be honoured.
It’s not clear cut at all, but it also doesn’t need to be as that is exactly why we have a court system.
Seems pretty cut and dry to me. If one participant is not made aware of and does not consent to being filmed, your sexual encounter is now not consensual.
It’s ultimately an issue with single party consent laws. In many places only one person has to consent to being recorded, even if they’re the person recording.
This is a good thing for many reasons, like recording your boss flagrantly violating labor laws and such, but I’m sure the issue is that there isn’t a legal caveat for the sex tapes.
I am surprised that Canada doesn’t have a separate revenge porn law like the US does, though.
We do. The debate in the article is about whether the non-consensual filming of the sex act does or does not invalidate the consent given for the initial sex act, making it a sexual assault.
That’s called rape by deception, and is illegal in at least some of the US.
It’s not even that, though. That may be in question, but the question here is whether or not an unlawful deed towards a party (“revenge porn” is illegal) should invalidate other agreements made between the same two parties.
To put it another way, if I hire you to fix my plumbing, and then you steal my car on your way out the door, should I be on the hook to pay you for your plumbing services? The theft of my car is unquestionably a legal violation, and something I am not welcoming of, but what is being questioned is if that act is related to our plumbing agreement.
Earlier comments in this thread suggest that if I knew you were going to steal my car I would not have hired you to fix my plumbing, and therefore the plumbing agreement must also be null and void. But the courts aren’t so sure – that there may be more nuance to that.
@grte
Again NAL, but this may have an effect on Canada’s one-party consent laws … which would not be a good thing imo (per https://recordinglaw.com/canada-recording-laws/)
Better to stay away from challenging the recording part and stick with the psychological damage.
I don’t agree. I don’t think one party consent should be so sacrosanct that you can film a person having sex without their permission and not catch problems for doing so. Not ancillary issues like psychological trauma (which of course matter in their own right and should carry consequences), the act itself should be a crime, that’s a huge violation. I’m sure we can find a reasonable legal distinction between that and recording a phone call.
Most developed countries have revenge porn laws which specifically cover this issue. It’s strange to me that Canada doesn’t.
It is strange to you because it does have revenge porn laws. What it does not have is an automatic invalidation of the contract entered into to engage in the sexual activity itself if revenge porn laws are violated.
To use another instance of this, if we agree that you will fix my plumbing, and then you steal my car, the stealing of the car is very much against the law, but breaking that law does not invalidate the contract for the plumbing work. @grte above thinks that if you knew the person was planning on stealing your car, you would have never agreed to have them work on your plumbing, and thus the plumbing contract should also become null and void in every case. That is what Canada does not have. Nor it is likely anywhere else does either.
Then that would be rape by deception. Does Canada not have that?
When there is deception, but that needs to also be established. One does not necessarily imply the other.
It’s not, though. Consent was given. There is some responsibility on those entering into an agreement to do their due diligence. Precedence dictates that it situationally dependent and up to the courts to decide on a case-by-case basis. “I didn’t realize” isn’t a good defence without something of substance to go along with it.
Consent was given to a different act than the perpetrator was intending on having. It shouldn’t fall on one to confirm that every sex act one participates in is not being filmed against one’s wishes, that should (pretty obviously, I think) require notification of intent.
Yes, if there is something of substance to prove that is the case then the courts will undoubtedly side in your favour. But “I didn’t know” is not sufficient to demonstrate that the intent differed. There are inherently many things one will not know about the situation. The obligations of an agreement are not invalided just because something you didn’t expect happened. The nuance must be taken into account.
It is the onus of one entering into an agreement to do their due diligence. Combing the room for cameras may be beyond reasonable, but letting it be known that your privacy is valued when settling on the terms of the agreement is a reasonable expectation. Certainly, if that is spelled out in the agreement then there is an expectation that it will be honoured.
It’s not clear cut at all, but it also doesn’t need to be as that is exactly why we have a court system.