Virginia Court Upholds Boyfriend’s Conviction of Unlawful Filming Girlfriend During Sex | Robinson Law, PLLC

 Posted on September 16, 2021 in Criminal Defense

In a recent opinion from a Virginia court involving unlawful filming during sexual activity, the defendant’s request for the court to reconsider his guilty verdict was denied. The defendant was found guilty of one count of unlawful creation of images. He appealed based on insufficient evidence showing he was guilty, countering that his girlfriend at the time was voluntarily nude and exposed, therefore forfeiting her right to privacy. The appellate court denied the appeal because it found that the defendant’s girlfriend could, in fact, reasonably expect privacy from being recorded during sexual activity.

The Facts of the Case

According to the opinion, the defendant and his girlfriend were in a relationship between 2017 and the end of 2019. Throughout the relationship, the defendant often recorded himself and his girlfriend while they were having sex. The videos took place in the defendant’s bedroom and focused specifically on his girlfriend’s body. At trial, the defendant’s girlfriend testified that she did not know about the recordings and that she had not consented to being recorded. Part of her evidence at trial included a video of a Skype recording in which she and the defendant engaged in sexual conversations and activity. The defendant’s girlfriend repeatedly expressed concern that the conversation was being recorded. Even though the appellant was, in fact, recording the conversation at the time, he lied and told her he was not.

At the close of trial, the lower court found the defendant guilty of one count of unlawful creation of images. On appeal, the defendant argued that his girlfriend had no "reasonable expectation of privacy" when they engaged in sexual activity.

The Decision

The defendant argued to the court that because his girlfriend was nude and willingly participating in sexual activity while in his presence, she gave up the right to expect that their interactions would be private. He argued that as soon as his girlfriend consented to sexual activity, she also consented to being recorded while engaging in sexual activity. There was not enough evidence, the defendant maintained, to show that his girlfriend ever expected their interactions in his bedroom to be only between the two of them.

The court rejected the defendant’s argument. It said that the law in this area is clear: even if the defendant’s girlfriend did not have a reasonable expectation of privacy from being seen while engaging in sexual activity, she did have a reasonable expectation of privacy from being recorded. Because the defendant put the recordings on permanent files that could potentially be shared or re-viewed in the future, he violated what a romantic partner might reasonably expect to result from seemingly "private" interactions.

Were You Arrested for Unlawful Filming in Virginia?

Defendants are often arrested in Virginia when there is not enough evidence to support a guilty verdict. The best way to defend against being unfairly convicted of a crime is to hire a dedicated, skilled criminal defense attorney. At Robinson Law, we are an experienced group of lawyers ready to advocate on your behalf. We understand that each case has its own set of circumstances, and we are ready to bring those circumstances to light so that your voice can be heard. We represent clients in Virginia sex offenses, DUI charges, violent crimes, and more. To protect yourself or a loved one, schedule a free and confidential consultation by calling 703-542-3616.