Boy meets girl.  Boy pushes record.  Boy and girl have sex. Boy uploads video to nine million users. Another idiot enters the world of nonconsensual amateur porn production.  This time there’s a twist — not only was the sex tape created without the victim’s consent, it was also distributed without her knowledge.

Unbeknownst to his girlfriend, Carlo Dellaverson, age 30, hatched a plan to introduce a “third” into their bedroom activities.  Or, rather nine million of them.  With a stealth video camera, this NBC News online producer secretly recorded the two of them having sex in their Greenwich Village apartment.  He then uploaded the video to XTube.  She discovered the video on his computer, DMTFA, got an admission that he’d uploaded it, and reported it to law enforcement.

That’s one way to trigger a break-up conversation.

The thing with surreptitious videos is that the cat is out of the bag when you distribute it online.  The defendant can’t fake knowledge that the gadget was filming.  (See The People of New York State v John C Kelly and his preposterous doggy cam defense.)  Dellaverson literally uploaded evidence of the crime he’d committed.  And to a site that boasts nine million registered users.  To date, this is the most bold distribution of a surreptitious video that’s been before the NYS courts. Online distribution is what we usually associate with revenge porn, but with revenge porn, the original capture of the image is usually WITH consent.  For logical reasons, the creators of secret sex tapes tend to be more private about the fruits of their labor — to prevent the victims from discovering and reporting it to law enforcers.  Oh, that’s another thing that differentiates this from revenge porn — there are actually criminal laws that address secret sex video creation and their distribution.

Here in New York State we have Stephanie’s Law (NY Penal 250.45) enacted in 2003 that makes it illegal to surreptitiously view or record when done for the purpose of one’s own “amusement, entertainment or profit” or “sexual arousal or sexual gratification.”  Or if it’s the filming of a sex act, for “no legitimate purpose” at all.  The presumption is that the recording is for “no legitimate purpose” when it happens in the bedroom.  I talked about Stephanie’s Law over at the Concurring Opinions blog

Carlo Dellaverson is in rough shape thanks to his pervy predecessors, Piznarski and Kelly.  Last year’s People of the State of New York v Piznarskicase established that Stephanie’s Law extends beyond hidden cameraman filming by “peeping toms” and includes situations when the creator is also a participant in the sex acts he’s secretly filming, meanwhile with a partner who is unaware the record button is on. And thanks in part to the Kelly case, in August, 2014, the NYS legislature expanded Stephanie’s Law so that perpetrators can be charged under it regardless of whether the unknowing victim’s sexual parts are actually observable.  Before this expansion, a “sexual or intimate part” of the victim needed to be visible. (See this blog postwhere I talk about the expansion and include the law)

This expansion is important for effective prosecution under Stephanie’s Law.  As I mentioned in that earlier blog post, anatomical restrictions can make it hard to capture a woman’s “sexual or intimate part.”  Innies versus outies. Moreover before the amendment, the law excluded clandestinely filming a victim engaging in oral sex — her identity probably more ascertainable than in other types of sex.  It also excluded incidents when a woman’s body was partly obscured due to camera angles or obstructions.

Dellaverson will also be charged with 250.55, a class A misdemeanor, for distributing the images.  While New York State sadly does not yet have revenge porn laws that penalize the nonconsensual dissemination of nude and sexual images and videos that were taken with the consent of the depicted subject, it DOES criminally penalize the dissemination when the images and videos were taken WITHOUT consent.

There’s no logic in a distribution law that hinges on how the images are created.  That’s like if you become deathly ill from cookies you made and the ER refuses to help because they didn’t come from somebody else’s kitchen.   The harms from the distribution are equally devastating whether the image was created with or without consent.  In both cases the victims are equally vulnerable to doxing, cyber-harassment, humiliation, permanently tainted search engine results, and more.

This deviant should have stuck to producing the NBC news — and not ventured into nonconsensual amateur porn.

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