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Consensual nudity does not mean consensual videotaping in Virginia

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Consensual nudity does not by itself grant consent to videotape the nude person in Virginia, says Fairfax criminal lawyer

Consensual nudity and sex among consenting adults is only by consent when truly by consent. As a Fairfax criminal lawyer, I know that by itself, such activity is not consent for one of the participants to film nor photograph the other person(s) — nor the photographer with the other person(s) — in a state of nudity nor engaging in sexual activity. Consent and adulthood is needed to engage in such filming, videotaping or photography, which certainly is absent when the other person does not even know s/he is being filmed or photographed.

When does photography in Virginia become unlawful peeping Tom photography?

When it comes to filming or photographing people consensually joining the photographer for sex or other nude activity in Virginia: “It shall be unlawful for any person to knowingly and intentionally create any videographic or still image by any means whatsoever of any nonconsenting person if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast [in various designated locations] … and when the circumstances … are otherwise such that the person being recorded would have a reasonable expectation of privacy.” Virginia Code § 18.2-386.1.

Why did Ronnie Lee Johnson get convicted for improper photography even if engaged in consensual sex?

Ronnie Lee Johnson’s conviction for unlawful photography resulted from his having not obtained consent to do so from his alleged victim, D.B.. Although Johnson claims that his alleged victim had consensual sexual activity with him (which she disputes), his alleged victim denies having ever consented to being filmed nor photographed in the nude. Clearly, the judge at Johnson’s bench trial did was not persuaded by Johnson’s presentation of a document at trial “that purported to be a contract between D.B. and Johnson in which D.B. gave written consent to being recorded while engaged in sexual activity. D.B. testified that while the signature on the document resembled her own, she had never seen it before.” Ronnie Lee Johnson v. Virginia, __ Va. App. ___ (July 27, 2021).

What precautions should one take before taking nude and erotic photos and video?

When adults are fully consensual to being photographed or filmed nude or in erotic situations, that should be a matter solely between the consenting adults. The challenge arises when the photographed or filmed person claims not to have consented, to having been a minor (which implicates the child pornography laws), to not having consented to the sexual activity (making the video and photographic material possible evidence in a sexual assault prosecution), and to having been the victim of revenge porn under Virginia Code § 18.2-386.2. Beyond that is when images of sexual activity get used as evidence in an obscenity prosecution.

Should I consult with a lawyer before engaging in nude and erotic photography?

With the foregoing possible landmines, it is a good idea to consult with a qualified lawyer before engaging in any purportedly consensual nude nor erotic photography, whether the activity is amateur or professional. While I fully believe in robust First Amendment-protected / free expression activity, plenty of lawmakers, judges, jurors, and prosecutors are willing to proceed with narrow views of those rights and to have no hesitation to step on them.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Learn how Jon Katz’s experience successfully defending thousands of criminal defendants can make a positive difference in your defense. Call 703-383-1100 for a free in-person consultation with Jon about your court-pending case.