In Jane Anderson’s travels with Aequitas, a group that helps law enforcement officials investigate and prosecute difficult cases of sexual assault, it is often the most popular question posed to her: how do we charge someone who didn’t commit the rape, but filmed it for all to see?
Several months ago, it was a prosecutor in Louisiana, where Anderson was on the road hosting a training session. Six weeks ago, it was a new member of Miami’s cybercrimes unit. There had been an assault, captured on video, and the cybercrimes prosecutor wanted to know how severely she could charge the person suspected of recording.
“I’m hearing from prosecutors all over the country that they’re handling cases where a sexual assault was recorded by a ‘bystander’ and they’re struggling to find ways to hold that person criminally liable for something,” Anderson said. “They’re really eager to hear some strategies.”
Their inquiries speak to a new trend noticed by law enforcement officials and victims advocates alike. These days, it is staggeringly routine for a rape, especially if it occurs in a social setting, to be accompanied by some form of digital trophy-taking. That could mean anything from a photo of a passed-out victim to a video chronicling the entire attack. Not evidence, but a memento.
As the culture has grown less tolerant of sexual assault, however, the appetite has increased to punish not only the rapists, but anyone who facilitated the crime.
So why not those who magnify the trauma with their phones?
It is a new question for the law, and a challenging one. There’s the hazard of charging a good Samaritan who was trying to videotape evidence. In Miami, the cybercrimes expert risks sabotaging her own case. On the one hand, the video was a heinous souvenir of the assault. On the other, the suspected cameraperson could potentially testify against the suspected assailant. “She really felt her hands were tied,” Anderson said.
In Steubenville, Ohio, two students who filmed and photographed the notorious gang rape there ultimately escaped prosecution for this very reason. Anthony Craig admitted he took two photos of the victim and Mark Cole copped to recording a video. But prosecutors gave both immunity deals in exchange for their testimony against the girl’s rapists. Despite a subsequent effort to revoke their immunity, Cole and Craig were never charged.
Nevertheless, there is a budding consensus that prosecutors should work around those obstacles. Anyone whose camerawork turns a private humiliation into a public one, they argue, should face serious criminal liability.
“It’s another form of victimization,” said Brian Pinero, the vice-president of victim services for the Rape, Abuse & Incest National Network. The problem “is not simply that they did not do anything to stop it. They gave a window into your suffering to the world. And it exists forever, replaying the worst thing that ever happened to you.”
How someone who records a sexual assault could be charged varies widely by jurisdiction. Most states impose a misdemeanor penalty for possessing photos or videos of someone engaged in a sexual act without that person’s knowledge. Aequitas has attempted to help several prosecutors go further, and charge video-takers as accomplices or co-conspirators. In a recent publication, Aequitas even argued that the state can charge someone who recorded an assault with the assault itself.
Prosecutors in Franklin County, Ohio, are daring to test this theory, leveling charges of rape, kidnapping and sexual battery against a teenager who broadcast her friend’s rape using the live-streaming app Periscope.
But unless the suspect can be seen cheering on the assailant or physically restraining the victim, the bar for co-conspirator charges is high. It might be ambivalent whether the person who filmed the assault did so out of voyeurism or to deliberately create evidence (as the Ohio teenager argues).
“Without a perfect set of facts,” said Anderson, “We’re looking at a very low level of accountably.”
Still, prosecutors’ willingness to even consider serious charges is a shift from just a few years ago. For a 2011 survey in the Georgetown Law Journal, Kimberly K Allen made an exhaustive search for instances in which the witnesses of a rape were thought to be criminally liable. She came up with just one.
In that example, from 2009, two men at a party raped a passed-out 15-year-old girl while other teenagers watched, laughed, and cheered them on. (They did not take photos.) When the two rapists challenged their conviction, the Texas court of appeals said there “may be sufficient evidence to establish that the people who encouraged [the rapists] committed some criminal activity.” Only the onlookers had never been charged to begin with.
Allen was making the case for prosecutors to hold spectators criminally liable in cases of gang rape. “Gang rapists are uniquely motivated by the presence of … the ‘audience’,” she wrote. “Far from being mere passive witnesses to the rape, spectators [are] facilitating the commission of the crime.” Intentionally watching a gang rape, Allen argued, could be criminalized the same way dozens of states make it a crime to knowingly attend an illegal street race or dogfight.
Aequitas argues the same theory could apply when a person not only watches a rape but films it. Unless a person walks away or calls for help, Anderson said, “Witnessing or videotaping a rape is not just being bystander. It’s much more like buying a ticket to an event.”
Current law makes it tough to translate that theory into criminal charges. So Aequitas and its allies are making subtle efforts to persuade state lawmakers to criminalize the filming of a rape outright.
Victims’ advocates have also called for closing the gaps in existing laws. Many states only criminalize the surreptitious recording of a sex act, which wouldn’t apply if the victim knows he or she is being filmed, but did not consent. Other states only criminalize recording in spaces where there is an expectation of privacy – a bathroom or a bedroom. Places such as a beach or a fraternity party might be exempted.
But some are cautioning against expanding the law to capture people who didn’t actually commit an assault.
EG Morris, an Austin attorney and the former president of the National Association of Criminal Defense Lawyers, warned that overzealous prosecutors could mistake a a bystander brave enough to take photos for evidence as a suspect.
Taking a photo for its salaciousness, he continued, is already a crime.
“It’s certainly a callous act,” he continued. But he saw problems with likening the act of taking photographs to the actual assault. “What if it looks like consensual sex? Do I have to know the person is being sexually assaulted? Are we really going to criminalize being a bystander as opposed to actively assisting in the commission of a crime? It’s a slippery slope.”
A 2013 incident in Athens, Ohio, brought those very problems into focus. In October of that year, a freshman posted a video on Instagram of a sexual encounter on the street. He assumed the woman had consented. Later, she told police it was assault.
Citing a lack of evidence, law enforcement officers in that case never pursued charges.
But even when a video seems to contain a straightforward depiction of a crime, prosecutors have found they have limited avenues for conviction. That was the case earlier this year, after footage surfaced of an alleged gang rape in Panama City Beach during spring break. The woman in the video appeared to be totally incapacitated.
Police arrested two men suspected of raping her, and a third man they accused of holding her legs and recording the video. But prosecutors soon decided the video wasn’t sufficient to convict him.
“While the video established he was there, it did not establish the elements to prove he committed a crime,” his attorney said. “Being physically present does not implicate you of a crime.”
