Opinion: Sexual encounters uploaded to porn site spark debate on consent and assault

Editor’s note: This article mentions and discusses sexual assault and suicide.

Written for Daily Hive by Sarah Leamon, a criminal lawyer living in Vancouver, who works on high-profile cases. Leamon founded the Sarah Leamon Law Group in 2018.

An unusual sexual assault case out of Ontario is sparking debate about what constitutes sexual assault and how Canada’s courts should view the issue of consent when technology enters the bedroom.

The facts in this case were as follows: two women agreed to have sex with the accused, Jacob Rockburn, who then secretly filmed the otherwise consensual encounters. Rockburn later uploaded the videos that he made to the popular adult website Pornhub with degrading and humiliating titles. He did so without the knowledge or consent of either woman. 

When the women discovered what he had done, they went to the police.

Both women testified in court, saying that they would never have consented to sex with Rockburn if they had known that he was filming them.

They also testified that they had suffered serious psychological harm as a result of their videos becoming public. One of the videos had remained on the website for nearly a year and had been downloaded over 900 times. The other had been viewed over 9,000 times. 

Both women described feelings of depression, anxiety and PTSD as a result of the ordeal. One even testified that she had tried to take her own life.

After finding Rockburn guilty of two counts of sexual assault, the judge sentenced him to seven years in prison.

In rendering her decision, Ontario Court Justice Ann Alder said that any prior consent on the part of the complainants to the sexual activity in question was vitiated by the accused’s fraudulent conduct. In order words, the women could not consent to an activity they did not know they were taking part in; namely, engaging in sexual acts on camera.

This decision aligns with a recent decision from the Supreme Court of Canada – R. v. Kirkpatrick. There, non-consensual condom removal during sex was said to void prior consent to sexual activity.  The Court held that where a condom is requested, it forms a fundamental element of the activity in contemplation. Removing it without the other person’s knowledge or consent vacates any prior consent and amounts to sexual assault.

In Kirkpatrick, the Court spent time addressing some of the dire physical consequences that could occur as a result of non-consensual condom removal. These include potential STI transmission as well as pregnancy. The risks associated with the removal of a condom factored into the Court’s ultimate finding.

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While there were no risks of unknown physical consequences in the Rockburn case, the judge said that the risk of psychological harm was real — whether or not the videos were ultimately shared with a third party. This meant that the offender did not need to share the videos in order for the act to constitute sexual assault. Rather, the transgression was in the action of making the videos without consent.

In making this finding, the judge also recognized that the emotional and mental impacts of such an ordeal are just as legitimate as any potential physical repercussion. This is an important part of the legal framework, and one that furthers the discourse on sexual assault and what it is.

Ultimately, the Rockburn decision adds another element to the conditions of consent — and this time, it’s distinctly technological in nature.

With the ubiquity of social media and internet pornography, this new development in the law is perhaps timely. The prevalence of “revenge porn” and “sextortion” have been crying out for legal clarity on these issues, and we seem to have gotten it.

However, the law may still be far from settled. The Rockburn decision could still be appealed. It is also possible that other courts, although persuaded by the judge’s reasoning here, may not be bound by it and could decide something entirely different in the future.

But until then – if you are considering bringing a video camera into the bedroom, remember that full disclosure is necessary and consent is key. Otherwise, you might find yourself in very serious trouble.