A Virginia court ruled this week that a four-year-old videotape depicting what a woman says is her rape will be handed over to the defense team in an upcoming capital murder trial, even though the woman says the video was recorded without her consent.
Lara McLeod, now 24, is not a witness and will not testify in the trial, which is slated for January 2016. The video was evidence in a case that was expunged two years ago. Under Virginia law, it’s illegal to record someone having sex without their consent.
But a judge ruled on Wednesday that the defense team had the right to view the video nonetheless.
“I wish that tape didn’t exist,” he said in court.
Since Lara McLeod is not a party in the trial, she wasn’t notified last week when Judge Craig D. Johnston first ordered a copy of the video to be given to three attorneys and one investigator defending Joaquin Rams, the man she says raped her in July 2011.
But Rams is not and has never been on trial for rape, and he cannot face charges for recording the tape because the statute of limitations has expired. He faces capital murder charges for allegedly murdering Lara’s 15-month-old nephew, Prince, during an unsupervised visitation at Rams’ home. The video Rams made of Lara was seized by the Prince William County, Virginia Commonwealth in 2011, after Lara was told by the police to report her rape, although she told them she did not want to. After Rams produced the tape, the police arrested Lara for making a false rape accusation.
In September, a BuzzFeed News investigation found that the police had mishandled the case by hastily charging Lara with false reporting and her sister, Hera, with obstruction of justice without a thorough investigation. In a private meeting, the chief of police admitted parts of the investigation were “improper,” “sloppy,” and “shortcutted,” but defended his officers’ instincts.
Hera’s charges were dismissed and Lara’s case was expunged, but the video is still in the Commonwealth’s possession. Last week, Rams’ defense team demanded to have a copy of their own.
Virginia prosecutors have repeatedly argued against releasing the tape, which they said does not answer the question of whether or not Rams committed the crime of capital murder. In an emergency motion filed in court on Wednesday, Lara’s attorney, Carrie Goldberg, asked for the video to be destroyed, or for the decision to be postponed so she could fully argue against its release.
“Please let it not be lost on the court that its order violates Lara McLeod’s most intimate privacy – her sexual privacy,” Goldberg wrote, noting that even if the ownership of the video was contested, nonconsensual sex videos are illegal. “Without notice to Lara McLeod, the court’s order results in the video being constructively returned to the control of the criminal who violated that privacy.”
Rams’ defense argued that the video is relevant because it could be used to challenge Hera’s credibility as a witness. It proves Hera “has a motive to get back at Mr. Rams," his lawyers said in court last week. In its filing requesting access to the video, the defense cited the BuzzFeed News investigation as an attempt by the sisters to misrepresent Rams in the media.
The defense’s claim that the video is necessary to establish Hera’s bias is absurd, Goldberg argued.
“Any negative feelings that the murder victim’s mother might have toward [Rams] are likely to be far more propelled by the fact that [Rams] killed her child than any prior sex acts,” the emergency motion read.
Judge Johnston upheld the decision on Wednesday despite the emergency motion. Given that the Commonwealth has a copy of the video, “it’s not right [for it] to be in possession of one but not the other,” he has said.
The video spurred a convoluted series of allegations and counter-allegations, outlined in the BuzzFeed News investigation. Even though all charges against the McLeod sisters were dismissed or expunged, they were not forgotten.
They came up during Hera and Rams’ custody battle, in which Rams ultimately recieved unsupervised visitation of Prince. Four months later, Prince died during one of those visits. Soon after, Rams was charged with capital murder. He faces the death penalty.
Rams has denied that he killed Prince, and he also denies any wrongdoing in the deaths of his ex-girlfriend and mother, which prosecutors sought to connect with Prince’s death. Authorities have said Rams was a suspect in those deaths, but the court ruled that they are inadmissible, as it would be too prejudicial for Rams to have to defend against three murders in a single trial.
But when the defense argued they had a right to the video because of a different type of prejudice — bias prejudice, meaning the video could discredit Hera if she takes the stand as a witness — the judge granted their motion.
Along with contesting that claim, Goldberg argued that there are laws protecting sexual privacy, both in the video voyeurism law and in the Commonwealth’s law prohibiting the unlawful dissemination or sale of images of another.
That Lara’s “sexual privacy was exploited once by [Rams] through the unlawful creation of the video does not entitle him – or anybody – to continue exploiting Lara, which is what happens every single time the video is viewed,” the emergency motion read. “The court, by ordering the video’s release is participating, hopefully inadvertently, in the continued sexual exploitation and voyeurism of Lara McLeod by ordering its release.”
Judge Johnston did not rule whether the video could be shown or discussed during the trial. He said on Wednesday that he did not want the jury to see the tape.
The video will be under a protective order that forbids the defense team to show it or discuss its content with others, and it must be returned after the trial to the court, where it will remain under seal.
“All of us know and recognize and appreciate the seriousness of this situation and are not going to be watching the tape or discussing it with anybody else,” defense attorney Joni Robin said last week.
“My apologies to Ms. McLeod,” the judge said on Wednesday, although Lara was not in the room.