The Coronavirus changed the way many of us do business. Since face-to-face meetings have largely been suspended for the past six months, our conference rooms have gone virtual with platforms such as Zoom enabling people to attend meetings from the “privacy” of their own homes.

But sometimes user error can produce some embarrassing (and potentially criminal) results. Take the case of New Yorker magazine journalist and CNN legal analyst Jeffrey Toobin, who didn’t realize the camera was still on as he thought he left a meeting with fellow New Yorker co-workers and decided to masturbate, displaying the act to all in attendance.

Florida Statutes Chapter 800 – “Lewdness; Indecent Exposure“, could establish what happened to Mr. Toobin (note, we say “what happened to Mr. Toobin” and not “what Mr. Toobin did) as a crime. Potentially it would be a crime in every state in which one of the attendees of that virtual meeting lived. Since it used the internet which is a means of “interstate commerce”, it could expose (no pun intended) Mr. Toobin to federal prosecution as well. At the federal level, the distribution of obscene material could violate the statutes prohibiting the use of the U.S. Mails, common carriers, or interactive computer services for the purpose of transportation (See 18 U.S.C. §1460-§1463) of obscene material. And if a minor had been in viewing distance of the screen… that’d be the end of it!

“Mens Rea” is the legal principle that intention or knowledge of wrongdoing constitutes part of a crime. Unfortunately, lack of knowledge or intent makes no difference when it comes to most sexual offenses, or even registration violations, as they are strict liability. Mr. Toobin’s lack of knowledge that his camera was still turned on and that his co-workers were able to see him is like saying, “but officer, she told me she was 19”. It doesn’t matter.

Currently – the media seems divided. One CNN colleague referred to Toobin’s conduct as an accident, for which in turn, he was blasted by others who said that masturbating on a work video conference at which women were present isn’t an “accident” and the only accident was that he got caught. Whatever the case, whether you consider “it” to be a mistake or a sexual assault, it will be curious to see whether Jeffrey Toobin’s act is going to lead to his firing or criminal charges brought against him. Hopefully it will make people realize that “it” can happen to anybody.

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