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C. A. GOLDBERG, PLLC X CONCURRING OPINIONS: FILMING SEX WITHOUT YOUR PARTNER’S CONSENT IS ILLEGAL

July 17, 2014

Please read my article at Concurring Opinions about the criminal laws surrounding making secret sex tapes.  It’s a topical issue here in NYS with the recent appellate decision and the new case pending in NY County Criminal Court where the Wall Street Broker repeatedly filmed three different women without their consent or knowledge.   The same laws that criminalize Peeping Tom — like behavior criminalize the making of secret sex videos/photography.  It might seem obvious that this is criminal behavior, but until the appellate case, there’d been no appellate ruling on situations in which the filmer is also a participant in the sex act.  In typical Peeping Tom cases, both the peeper and the video device (if any) are unknown to the victim.  However, it is also illegal if only the operational video device is unknown.

A conversation with somebody recently revealed that some men video sex to have as exculpatory evidence if they are ever falsely charged with rape.  That shocked me.   Is this common?  Filming as a protective measure in anticipation of rape charges is NOT a defense if accused of clandestinely filming sex.  And if somebody tried to introduce it as exculpatory evidence, I’d expect the prosecutor to supersede the original rape charges with new ones relating to the secret filming.