Secretly recording and posting video of consensual sex is assault, says court

The judge said the secret sex recordings were “a classic case of deception.”

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Jacob Rockburn took the stand in his own defence, but it didn’t do him any good.

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Ontario Court Justice Ann Alder said his testimony defied common sense and bordered on the ridiculous. In the end, the judge found Rockburn guilty on two counts of sexual assault.

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There are sexual-assault trials almost every week at the Elgin Street courthouse, but this one was unique.

Rockburn, 39, was on trial for secretly recording consensual sex and then posting the video on PornHub. Because it was surreptitious, Alder ruled that the fraud negated consent for the sex.

It’s believed to be the first case in Ontario where the Crown — in this case Ottawa Crown Attorney Moiz Karimjee — has successfully equated non-consensual recordings of consensual sex to sexual assault.

The judge ruled the consent was vitiated by fraud because Rockburn did not have consent to record the consensual sex.

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The judge didn’t buy Rockburn’s testimony that he had consent to record or they ought to have known they would be recorded. The women testified at trial they would never have had sex with Rockburn had they known they would be recorded.

“To be clear, I do not believe Mr. Rockburn and reject his evidence,” the judge said in a recently released ruling.

“Rockburn was not credible, nor was he reliable. His evidence was replete with internal and external inconsistencies … His evidence was often founded on assumptions, and his carelessness with being truthful was evident throughout his evidence.

“Many of the internal inconsistencies are the result of him changing his evidence when he was confronted in cross-examination with either inconsistencies or the fact his evidence at times defied common sense and was not logical in light of other evidence, generally his own,” the judge said.

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“Some of his evidence defied common sense, was unreasonable and illogical in the circumstances and bordered on the ridiculous,” Alder added.

His reason for posting the sex video online would itself be sufficient to reject all of Rockburn’s testimony, the judge said.

“It was inconsistent, changing as he testified, and became completely illogical, implausible and showed his willingness to say almost anything to avoid saying something he thought could be harmful to his versions and his intent,” Alder ruled.

In the landmark decision, the judge also noted: “It is impossible with today’s technology to consider the risk of deprivation in the form of serious psychological from surreptitious recording as separate and distinct from the risk of distribution of those recordings.

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“That fear, that serious psychological harm develops whether or not the images are actually distributed.”

Rockburn is in jail, awaiting sentencing.

The judge said the secret sex recordings were “a classic case of deception.”

One victim has extreme anxiety, doesn’t trust anyone and hasn’t been able to have another relationship, court heard. She recoils when touched and has become paranoid.

“Finding out the video was posted destroyed her. She now has PTSD and is on medication for anxiety and depression,” the judge said.

The other victim testified about the significant impact of the 2020 videos and said she was stressed, anxious, scared and had found it hard to sleep ever since.

One of the victims was upstairs at her grandmother’s home when she learned the mortifying news. She told her grandmother first about the sexual encounter that had been secretly recorded and posted online.

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“(To record) without my knowledge is terrifying, then to (post it) is really scary … It’s disgusting, it’s unbelievable,” the woman testified at Rockburn’s trial.

Rockburn, a former Ottawa construction worker, was also jailed last year for groping a teen girl.

He took the stand in his own defence in this case on Tuesday.

He testified that he asked permission in one case and in the other just presumed the woman knew because the five-inch-high video camera in the bedroom — installed for security reasons — was plainly visible.

The incident where he said he asked permission unfolded in the back seat of his pickup truck in the parking lot of the Craig Henry neighbourhood tennis court in broad daylight.

Rockburn told court he never told the women he was going to post the sex videos, complete with degrading titles, online.

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Under cross-examination by Karimjee, Rockburn said he felt terrible about posting one of the videos, but, as the Crown attorney noted, it stayed online for a year before Rockburn took it down.

“Why on Earth would you put it on Pornhub?” Karimjee asked.

Rockburn said he uploaded it to clear up storage space on his phone.

“It was pretty well getting close to maximum,” Rockburn testified.

Karimjee asked the accused if he was just making up answers as he went along, and Rockburn said no.

The judge then asked the accused: “So you thought Pornhub was your own private storage space?”

“Essentially,” Rockburn replied.

Rockburn portrayed himself as a victim and said the case against him was the most traumatizing thing he had ever endured. He also told court he had lost everything.


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