Male Students Videotape Sex to Avoid Date Rape Charges - It Works and Can Be Legal

WASHINGTON - June 23, 2014 - PRLog -- Such video recordings have been used successfully to defeat allegations of rape, a number of  Internet web sites are recommending video taping to men as a defensive tactic, and the practice is reportedly not illegal in the great majority of states, says public interest law professor John Banzhaf.

        Since only 17 states explicitly define rape as any penetration without consent, and the remainder generally require either that the woman at the time be "physically helpless" - i.e., unconscious, or unable to resist or communicate -  or that the defendant use force or the threat of force, a videotape showing no apparent manifestations of force, and a female complainant able to move even a tiny bit (i.e., perhaps drunk but not "helpless") could at the very least create enough doubt as to require a "not guilty" verdict.

        Moreover, even in those 17 states which do require consent - Alabama, DC, Florida, Kansas, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, Oregon, Pennsylvania, Tennessee, Utah, Vermont, Washington - a videotape showing the female actively cooperating and participating in sex could signify her consent, even if there is no proof that she agreed verbally.

        News reports indicate that videotapes can often provide a successful defense to rape:

* Four students at Hofstra University were accused of gang raping a fellow student, but were freed when a cell phone video indicated that the sexual encounter was consensual.

*  A San Francisco lawyer, charged with raping three women, had the charges regarding two women dismissed because he had videotaped the encounters.

* A man was found not guilty of an alleged gang rape after a Cook County, Illinois, jury was shown a videotape arguably showing some signs of consent by the girl.

        Although the Federal Wiretapping statute prohibits audio recording, it does not limit recording of video-only images.  Moreover, the great majority of the states also do not criminalize videotaping.

        In any event, the few laws which do criminalize it are full of restrictions and loopholes so they may not apply where a man videotapes his own sexual activities in his own room, not for sexual gratification, but rather as a legal defense to rape.  Also, some men are apparently taking the view that they would rather be changed with the less serious crime of illegal videotaping than the much more serious felony of rape.

        Several Internet web sites are suggesting that men should routinely videotape their sexual encounters as a possible defense to a charge of date rape.  This may be part of the backlash which is being spawned by federal pressure on universities to punish more students accused of rape.

        Another measure of this backlash is the growing number of men suing their universities after having been found guilty of date rape, sexual assault, etc. - about a dozen of which have already been successful, says law professor Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf