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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.

In a recent opinion, a Virginia appellate court upheld a trial court’s decision to deny the defendant’s motion to strike and reconsider despite the defendant claiming that additional elements are required to prove marital rape. The decision provides valuable insight into marital rape law in Virginia.

According to the court’s opinion, the case involved a married couple who had a rocky relationship but shared a bed together. The wife alleged that while she was sleeping one night, she woke up to find her husband (the defendant) on top of her and that, despite her protests, he engaged in non-consensual intercourse with her. The next day after work, the wife reported the rape incident to the police and was examined at a hospital where the examiner took photos of the bruises on her leg. The defendant was questioned by police, and at first, denied having intercourse with her within the past month. However, the defendant’s DNA evidence was found. Additionally, the defendant had a scratch on his shoulder. The wife also had sent the defendant a text the day after the incident asking why he did that to her.

At trial, the defendant claimed that his wife initiated the sexual intercourse. Additionally, the defendant apologized to his wife through text for whatever it was that he did, testifying in court that he knew he did something to upset her. Despite this, the defendant argued that the evidence was not sufficient enough to prove rape. The trial court found the defendant guilty of rape based on the wife’s credible testimony. The defendant filed a motion to reconsider, arguing that this court had to follow the cases previously decided by the court, cases which had determined that there were additional elements required before one could be convicted of rape when the victim is a spouse.

Recently, a state appellate court issued a written opinion in a Virginia obscenity case involving a defendant who allegedly videotaped an eight-year-old girl while she was changing. The case required the court to determine whether the defendant violated the law by filming the young girl without her knowing, meaning she neither provided consent nor told the defendant that he did not have consent.

The Facts of the Case

According to the court’s opinion, the defendant was dating a woman who had an eight-year-old daughter from another relationship. One day, the woman was looking through the defendant’s phone and found two videos of her daughter in various states of undress. From how the camera was positioned, it appeared that the video was taken from under the girl’s bedroom door. The woman obtained a copy of the videos and eventually contacted the police.

The defendant was charged with filming a non-consenting minor under Virginia Code § 18.2-386.1(A). After the prosecution’s presentation of the evidence, the defendant moved to strike the indictment, arguing that the evidence was insufficient. Essentially, the defendant claimed that he could not be found guilty because the girl never told him that he did not have permission to film her. The court rejected the defendant’s claim, stating that no minor “can consent to anything.” The defendant was subsequently convicted.

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An appellate court recently issued an opinion following a Virginia criminal defendant’s charges involving sexual internet conversations and videos with an undercover detective posing as a minor. The defendant was charged with four counts of using a communications system to procure a minor and one count of soliciting a child believed to be under fifteen years old. The trial court granted the defendant’s motion to strike two of the four charges, and the jury convicted him of the remaining charges. Among several issues, the defendant argued that the court violated the wiretapping act and erred in denying his motion to suppress the conversations.

According to the facts, an undercover detective created a fake profile purporting to be a thirteen-year-old girl, and he was randomly paired with the defendant. Throughout the conversation, the defendant sent explicit messages and videos of an adult male engaging in sexual acts. The detective took screenshots of the chat but could not capture the video. The detective identified the defendant with information the man gave him during the chat. Shortly afterward, the Virginia SWAT team executed a search warrant and handcuffed the defendant. However, they then removed the handcuffs and told the defendant he was not under arrest. The detective and defendant spoke about the conversations and then asked for an attorney. After requesting the attorney, the defendant voluntarily gave statements about his family and potential charges.

The defendant moved to suppress his chats’ contents with the detective, arguing that they were electronic communications obtained in violation of the wiretap act. He contended that only two parties could consent to the recording of the conversation, the persona of Lilly and the defendant, and as such, the detective was a third party. Further, he argued that the statements he made to the police were made during a custodial interrogation, and he should have received his Miranda rights.

Earlier this month, a state appellate court issued a written opinion in a Virginia rape case discussing whether the seizure of the defendant’s DNA was in violation of his constitutional rights. Ultimately, the court concluded that the defendant abandoned any expectation of privacy he had in the items containing his DNA when he placed them in the trash outside his home.

The Facts of the Case

According to the court’s opinion, the case arose from an incident in 1995, in which a man in a ski mask broke into an apartment and forced two women inside to perform oral sex. At the time, law enforcement obtained a DNA sample, but had nothing to compare the sample to. Years later, in 2016, a woman called the police explaining that her husband, the defendant, told her he was the “Fairfax County Rapist.” He explained that he would use a black ski mask and hold his victims at gunpoint as he demanded oral sex.

The defendant’s wife called the police, explaining what the defendant told her. Law enforcement then investigating the defendant. To obtain a sample of the defendant’s DNA, police went to his home and obtained items from his trash, including a beer bottle and cigarette butts. The results from the DNA testing indicated that the defendant “could not be eliminated” as a contributor from the sexual assault. After this, the police obtained a warrant to obtain an additional DNA sample from the defendant, which also indicated he could not be eliminated as a contributor.

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