Recording while having sex

Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault. This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved. If the recording is done with knowledge and consent, that probably is defensible. But what if it isn’t. Many states now have statutes prohibiting unknowing or nonconsensual recordings. As does the federal government in 18 U.S.C. 2251(a). Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

The accused was convicted of taking pictures during sex. He asked for the federal equivalent of a Griffiths motion, which was denied. On appeal the court found the judge erred and the charge should have been dismissed. The court found insufficient evidence of intent to engage in sex for the purpose of making pictures. In other words, if he’d decided to take pictures of sex and then arranged the sex and recorded the sex—and there was evidence of that intent—then he could be found guilty. But, as the recording was incidental and there was no evidence of intent there could be no conviction. It’s not exactly a chicken-and-the-egg problem, but seems close.

Palomino-Coronado contends that the government failed to prove one of the elements of § 2251(a)—namely, that he acted for the purpose of producing a visual depiction. § 2251(a) contains a specific intent element: the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct. a defendant must engage in the sexual activity with the specific intent to produce a visual depiction; it is not sufficient simply to prove that the defendant purposefully took a picture.

Anyway. If the accused is charged under UCMJ art. 134 for violating 18 U.S.C. 2251(a) or a similar statute, careful attention should be paid to Palimino-Coronado. It is certainly not a slam-dunk, but there are arguments that can be made.