Post: #1

I've seen a couple of people assert here recently that even if you take video of a sexual encounter with a girl, to protect yourself against possible later false rape accusation, that video would not be admissible because it was taken illegally without her consent.

I am a lawyer but I have never researched this particular issue. I believe, though, that the video would be admissible. The rules of evidence are separate from any laws about two-party consent. By taping her without her consent, you might have broken a law and be subject to prosecution for that offense. But the video would still be admissible to clear you of the false rape charge.

(The situation would be different if you were a government actor. The government is subject to the Constitution; if police take video that violates your right to privacy that would likely be inadmissible).

Other lawyers on the forum should weigh in though. I could be wrong.

Post: #2

I believe you are right. The "exclusionary rule" in the USA applies only to state action, illegal searches by the state.

Also, any prosecutor seeing a video showing an alleged rape was actually consensual would have an ethical obligation to dismiss the charges or face disbarment.

Post: #3

So lets admit the basics - Carlo Dellaverson was an idiot for posting his covert video online. And considering the girl he taped was a live-in girlfriend, he was hardly trying to prove it wasn't rape.

http://nypost.com/2014/09/09/nbc-produce...irlfriend/

And for the love of god gentlemen - never acknowledge anything in email. Ever.

But for the important question - The Daily News reports that "he was charged with unlawful surveillance and harassment." If he hadn't uploaded the video, if he had just kept it on his PC, could he have still faced the "unlawful surveillance" part of his charges?

Post: #4

True, but I'm not so sure that would be stupid in the case where someone alleges rape. Regardless of whether or not the recording was consensual, the first thing you if accused is post it online. US courts have a serious cultural bias to the First Amendment and it gets very problematic once something is published versus kept secret. Unlike a recording not yet published where a judge could more easily prevent its use, publicly published recordings are a different beast. I imagine it would be nigh impossible to prevent it from being admitted as evidence, in addition to the exculpatory value mentioned before.


As for email, Eliot Spitzer said it best: "Never speak when you can nod, never nod when you can wink. And never, ever send an email."

To answer your question about unlawful surveillance charges, it would turn on state law but in a private dwelling - hers too, really as they shared the space - she had a reasonable expectation of privacy so I would think the charges would stand.

Post: #5

So basically you guys are saying if she's alleging to rape(she filed charges not just just publicly slandering your good name) and you have a video to prove otherwise you SHOULD post it online.

Post: #6

As long as what she is saying is false and you did not rape her and the video demonstrates that, then yes, if she's gone to the police and you stand to get charged, that's what I would do. It's damage control mode at that point.

Post: #7

That rule applies to the prosecution.

Post: #8

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Post: #10

(11-22-2014 12:33 PM)WestIndianArchie Wrote:  

(11-22-2014 09:10 AM)Sp5 Wrote:  I believe you are right. The "exclusionary rule" in the USA applies only to state action, illegal searches by the state.

Also, any prosecutor seeing a video showing an alleged rape was actually consensual would have an ethical obligation to dismiss the charges or face disbarment.

Because prosecutors get disbarred or face any sanction for suppressing or ignoring evidence.
LOL. (excuse my cynicism, too much time spent in crim law)

WIA

If you remember, Mike Nifong, the District Attorney in the Duke Lacrosse case, got disbarred for hiding evidence in that case.

If you had a tape showing consent, the prosecutor would have to dismiss.

Just make sure you make a copy before giving it to them to watch.

Post: #11

Ill take the rap for illegal surveillance over 10+ years of sexual offender register any day. Her and the courts judgement be damned.

Post: #12

Then the next question is, can you use the same video to press charges against her for filing false charges?

Post: #13

Here's a question: let's say it's a girl you've had sex with multiple times then she goes bat shit crazy and cries rape.

You present the video of you having consensual sex but the girl claims it was from a previous encounter and not the time later that you 'raped' her?

What then?

Post: #14

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Post: #17

(11-23-2014 03:22 AM)Sp5 Wrote:  If you remember, Mike Nifong, the District Attorney in the Duke Lacrosse case, got disbarred for hiding evidence in that case.

If you had a tape showing consent, the prosecutor would have to dismiss.

Just make sure you make a copy before giving it to them to watch.

Yeah, but the accused were rich.
While white privilege, and male privilege are largely bullshit
Rich/class privilege is real.

Post: #18

(11-23-2014 02:38 PM)WestIndianArchie Wrote:  

(11-23-2014 01:44 PM)monster Wrote:  Here's a question: let's say it's a girl you've had sex with multiple times then she goes bat shit crazy and cries rape.

You present the video of you having consensual sex but the girl claims it was from a previous encounter and not the time later that you 'raped' her?

What then?

Rule 412 kicks in
- her prior sexual behavior won't be admitted to evidence, unless there's overwhelming probative value.

What "overwhelming probative value" means is something a decent lawyer would charge you for. The attorney would research what that phrase means in your jurisdiction, and from there the defense would negotiate with the State as to what should happen next.

State will probably shoot for a plea. Then the defense attorney can have the weight of the world on their shoulders. Agree to a plea and client gets punished for something they don't do. Or roll the dice on a trial. In my state, there's basically a 1 in 20 chance that you'll escape the justice system scot free. 90% of cases wind up in plea bargain situation, and the state wins ~51-52% of trials. And in no situation will you not end up paying out the nose for your freedom.

Rarely does the State do the right thing and dismiss the charge.
Where there are people, there are politics.
Individual asst DA's have their own personal motivations.

WIA

Damned if you do, damned if you don't.

Post: #19

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