BARRHEAD – A Barrhead man who recorded a woman performing a sexual act and then sent the video on to one of her friends received a six-month conditional sentence and a 24-month probation order.
In Barrhead Provincial Court Dec. 21, the man, who cannot be identified due to a publication ban, pleaded guilty to publication of intimate images without consent as outlined under Section 162.1 (1) of the Criminal Code. A second charge was withdrawn.
Judge Gordon D. Putnam agreed with the joint submission from the Crown and defence and imposed the CSO to be followed by two years of probation and waived the victim-fine surcharge.
For the first three months of the conditional sentence order (CSO), the accused will be under house arrest and must remain in an approved residence 24 hours a day, except to attend medical appointments or required court appearances. He will then be required to abide by a curfew between the hours of 10 p.m. and 5:30 a.m. for the remaining three months of the CSO. Any remaining intimate images and recordings of the victim must also be destroyed.
Crown prosecutor Anthony Estephan said the victim, who also cannot be identified, attended the Barrhead RCMP detachment and provided a statement to a constable on March 22, 2022, where she detailed how an intimate video of herself had been distributed without her consent.
She reported to the RCMP that she and the male had been watching a movie in her apartment on March 4 when he moved her hand to “his crotch area,” Estephan said.
She proceeded to perform a consensual sex act with the defendant, who recorded it on his cellphone. Afterwards, the victim reported that he told her, “Now I have something to hold over you if you don’t want to have sex with me.”
The victim did not respond to this threat but blocked him on all forms of social media. On March 8, he messaged one of the victim’s friends and sent her a copy of the video via Instagram, along with an additional photo. The friend also attended the RCMP detachment with the victim and provided a statement about the messages the man was sending her on Instagram, along with screenshots of the conversation.
Estephan said the Crown’s position on sentencing took into account a number of factors, such as the early guilty plea that relieved the complainant of the need to testify “which presumably would have been a very traumatic experience for her.”
Estephan said the 19-year-old man was also a “youthful “offender with no criminal record, which indicated a good prospect of rehabilitation. By way of aggravation, Estephan said it was clear that there was a significant impact on the victim and this offence was a violation of her privacy, as well as her sexual autonomy and integrity.
He noted it’s also aggravating that in this particular case, there was a threat made to hold this over her head in the event that their sexual relationship ended.
“This offence had the potential to wreak very severe consequences on the victim, (including) psychological consequences,” he said.
Estephan noted Parliament has incorporated provisions about the involuntary distribution of intimate images into law in response to growing concerns around cyberbullying and revenge porn, which in some cases has resulted in suicide.
However, Estephan acknowledged that in this instance, the material distributed involved a five-second video clip and an additional image that did not clearly identify the victim, due to the angle both were shot and their generally poor quality.
There was also no wide dissemination of the video, and it was not recorded “surreptitiously,” which other courts have taken into consideration when imposing custodial sentences in such cases.
Defence lawyer Edmond O’Neill mostly echoed the Crown’s submissions in the case, noting factors such as the fact that the video was not shared on the Internet or publicly and the victim’s face was not depicted. He also noted that his client, who has lived in the Barrhead area for most of his life, has a very good support network through his family and had attended university prior to the onset of COVID.
“This is a true joint submission. There is a quid pro quo; each side gave something up for this,” he said.
When asked if he wished to say anything, the man said he realized he had made a mistake and apologized for his actions, adding that he would apologize directly to the victim if he could, but he recognized she no longer wanted anything to do with him.
Judge Putnam noted that even though these materials were not shared publicly, one only needs to push a button and such a video can go anywhere.
“It is very important you understand that you were at a line that, if it had been crossed, we could have been dealing with a much different scenario for sentencing,” he said.
