Legally can a recorded consent pre-sexual activity “box a victim in” if after recording consent: they got sexually assaulted or they changed their mind? According to our company’s U.S. legal counsel: If a victim agrees that at one-time consent to sexual activity was given, but then (i) sexual actions exceeded the scope of the consent, or (ii) consent was withdrawn, a recording of consent would not be admissible because:
- a) It is no longer relevant. Relevant evidence is evidence that makes the existence of fact more or less likely than it would be without the introduction of the evidence. FRE 401. Because the victim already consented to the existence of the initial consent, then playing a recording of the consent doesn’t make the consent more likely. An admission of a statement of “YES” makes that fact exactly as likely as it would be if a recording of “YES” were presented. Therefore, the recording is not admissible. FRE 402.
- b) It is cumulative. Evidence that is purely redundant with evidence already of record, is not admissible. FRE 403. Once a victim testifies that s/he said “Yes” initially to sexual activity, further evidence of her saying “Yes” is merely cumulative.
- c) It confuses the issue. The concerns that confusing a jury as to what activity the “Yes” applied is frequently confronted by courts (by analogy). Evidence that merely serves to confuse issues is not admissible. FRE 403. The legal fact of initial consent differs from the legal fact of withdrawn consent, as well as, the legal fact of scope of consent. d) Various other FRE 403 issues. Please read through FRE 403, you’ll agree that bombarding a jury with a recording of “Yes” once a victim has already testified to her/his “Yes” statement activates other FRE 403 prohibitions: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Links to the Law:
THIS WEBPAGE INCLUDES LEGAL ADVICE FROM OUR COUNSEL TO US AND RELATES TO SPECIFIC FACTS AND CIRCUMSTANCES APPLICABLE TO SAFE SEX CONSENT INC . THIS IS NOT INTENDED TO BE A SUBSTITUTE FOR LEGAL ADVICE TO YOU PROVIDED BY A LICENSED LEGAL PRACTITIONER IN YOUR JURISDICTION.