Secret Video of a Sex Act on Pornhub

"[The women's consent was] vitiated by fraud."

"She [the female plaintiff] said finding out the recordings had been posted on Pornhub destroyed her."

"Her privacy was taken away by someone she trusted [and] she now suffers from post-traumatic stress disorder, anxiety and depression."

Ontario court Justice Ann Alder

The Ontario Courthouse in Toronto is photographed on Monday, May 2, 2022. Secretly filming and sharing footage of consensual sex constitutes a sexual assault, according to a recent case in Ottawa, and that is opening up a debate about how courts view the issue of consent when it comes to technology. THE CANADIAN PRESS/Christopher Katsarov. CKL

"This is a really unique case because this is not something we've seen before." 

"When you have otherwise consensual sexual activity that has been non-consensually recorded, it is not at all settled in Canadian law right now whether that act of recording itself can transform that sexual activity from something that is consensual to something that is non-consensual."

Moira Aikenhead, law professor specializing in technology-based gender violence, University of Victoria

"Consenting to have sex with someone while it's being recorded is a very different type of sexual activity compared to having sex with someone when you are not being recorded." 

"It's incorporating this aspect of technology that's so fundamental to our sex lives in the modern era."

Suzie Dunn, law professor researching technology-facilitated violence, Dalhousie University

"[Secretly  recording someone having sex] should and does [render consent void because of the emotional and psychological harm caused]."

"In a world in which platforms like Pornhub are as popular among some demographics as Facebook, the harm caused just by creating non-consensual sex videos is profound."

"Imagine living with the knowledge that someone has a video of  you having sex, that you did not want created, that could at any moment be distributed globally."

Elaine Brooks-Craig, professor specializing in sexual-assault law, Dalhousie University

Jacob Rockburn, 39, found guilty of two counts of sexual assault in the Ontario Court of Justice. Photo by Gary Dimmock /Postmedia

According to an Ottawa judge's ruling of recent date that sparked a debate over how courts view consent in technology-involved cases, secretly filming and sharing footage of consensual sex constitutes a sexual assault. High-profile cases, in particular those involving teens, of revenge porn and 'sextortion' involving threatening to share evidence of sexual activity unless demands are met represent issues and views that have evolved over recent years.

A Criminal Code charge for the non-consensual sharing of intimate images online was added by the federal government, leading to some provincial legislatures changing their laws in the purpose of offering victims more recourse through civil claims. In this very particular case, Jacob Rockburn was sentenced to seven years in prison less time served, having been found guilty of sexually assaulting two women, and distributing the images online.

Both women had consented to having sex with Rockburn, but on learning later that he had filmed them absent their consent and uploaded videos to Pornhub, a pornography website, using degrading titles, the two women took the matter to court. Their identities are protected by a publication ban, and both women informed the court they would never have consented to sex had they understood they were being recorded. Posting the resulting videos online caused them psychological harm.

In her decision Justice Alder leaned on an analysis from the Alberta Appeal Court in 2021, discussing the notion that secretly recording a sexual encounter could meet the legal threshold for sexual assault. Removing a condom without a partner's knowledge was already ruled by the Supreme court of Canada that that act could void consent. The Supreme Court also ruled that failing to disclose one is HIV-positive with a potential of transmission, can be considered aggravated sexual assault.

The current Liberal government however, in response to advocacy by the LGBTQ+ community moved to limit such prosecutions, citing evolving science. A lawyer with the Women's Legal Education and Action Fund (LEAF), Rosel Kim, stated she welcomed the court taking the impact of the crimes seriously, and she expressed interest in how higher courts would handle the issue, since the offence of sharing sexual images without consent was a relatively new social phenomenon.

Images of one of the women were on the Pornhub site for almost a year, and during that time downloaded 912 times. Court also heard that the video of the second woman had been viewed over 9,000 times, leading her to attempt suicide. "She explained how she wondered when someone looked at her whether it was because they saw the video", explained Justice Alder at the Rockburn sentencing.

"It certainly helps if I can say to clients and point to a case and say, 'Look,this is something the courts would take seriously. You wouldn't be pointed out and laughed at."

"You wouldn't be told that it was  your fault or that you were stupid, or that ... you were reckless'."

"The biggest fear everyone has is that they won't be believed."

Kathryn Marshall, lawyer advocating for protecting women and girls from violence, Toronto