Tales of Title IX: Benefits of an Investigator Who’s Also a Subject Matter Expert

By: Brett A. Sokolow, JD., President, ATIXA

The field is awash in investigators of all kinds. I assume many of them are expert investigators, but who knows? What’s rare, though, is an investigator who’s also a subject matter expert (SME) on the topic they’re investigating. You can investigate race discrimination when you’re not an SME on racism.  You can investigate sexual harassment without a deep understanding of the boundary between free speech and harassing speech. But, sometimes, an investigation calls for the “double-SME” – an expert investigator who’s also an SME on the topic of the investigation.

Over 22 years, I’ve seen more than my fair share of cases involving sexually predatory conduct, abuse, pedophilia, and similar sex offenses that fall to greater or lesser extents within the umbrella of deviance, though that is of course a loaded term. Not too long ago, two of my areas of SME merged in one case to provide our client with a result that I doubt could have been achieved by a single-SME approach. I don’t think my client realized this going into the engagement, and initially, I don’t think that need was clear to me either, but it turned out that I needed both investigation expertise and depth on predatory deviance. Here’s the tale.

Two male college students were in a relationship. They dated for nearly a year, and then they broke up. Shortly thereafter, the complainant male student reported to the Title IX office of their university that they were subject to sexual harassment by their former boyfriend, now the respondent, who had allegedly posted an illicit video of their sexual interactions online. It sounded like a fairly straight-forward sexting, Snapping, or revenge porn situation, but it proved to be anything but.

The video of the former couple’s sexual congress appeared online, on a website that was known for hosting amateur gay pornography. Friends of the complainant had been surfing the site for their own pleasure and had recognized the complainant in a video that was posted with the title “hotel room secret camera”. Millions of porn videos out there and somehow they stumbled on this one. The identity of the poster was unknown, just an untraceable online handle, “CupKake.”* The friends showed the video to the complainant, and the complainant brought it to the Title IX office.

Our firm was engaged to investigate. We interviewed the complainant and reviewed the video (yes, it is very strange to be paid to review such sexualized content, but we’ve gotten used to it). The complainant contended that the video taken depicted him with the respondent in a hotel in Miami they visited during a previous spring break. The complainant’s face was clearly visible in the video, the respondent’s was not. The complainant alleged that the respondent must have filmed them in the hotel and then posted the video subsequently once they had broken up, posing as CupKake.

We interviewed the respondent, who vehemently denied being CupKake. He had a million defenses. He’d never do such a thing. Their breakup had been more than a year prior, and had not been rancorous. He had no motive to harm the complainant. He too was depicted on the video, though not identifiably. It was awfully convenient that the complainant’s friends just happened upon this video, etc.

We began our due diligence with engagement of a forensic videographic company, to learn what we could about the video. They were able to enhance and zoom it to confirm the participants’ identities, though both parties had already done so, and agreed that it showed the hotel room they had jointly occupied during the week of their spring break. More importantly, we learned from the forensic expert that the video did not appear to be a “home” video taken voluntarily. They concluded it was taken surreptitiously. The camera angle and positioning were much higher than a tripod. The expert suggested something mounted high on a wall, with a fairly small lens aperture, such as a concealed camera in a vent or behind a wall painting. They further surmised that a couple taking a video of themselves would have used much more lighting. This room was too dim. That raised even more questions. Had the respondent concealed the camera? Had the complainant? Who was CupKake? One of the parties, or a third-party surveillance-savvy Peeping Tom? 

At the same time, we worked a different angle, to get data from the website where the video was posted. Without much difficulty (this was in the midst of significant legal and media attacks on certain porn sites for posting videos without authorization), we were able to confirm that the upload identity of CupKake was unknown to the host site and that the video it would be immediately taken down. Success on that front.

The respondent contacted us, having spoken to an attorney. He wanted us to forensically review his laptop, to show that this particular site was one he never accessed. It turned out that he accessed quite a bit of porn, that his browser history was full of it (browser hygiene was not a priority, apparently), and the site in question was not one he visited. While there are other ways he could have uploaded the video, the initial perception that this might be a revenge porn case was becoming more and more questionable. He had three hours of searches in his browser for CupKake after he received the video. Why would he search for CupKake if he was CupKake? We dug in further. The video clip had some potential indicia that it was a discard. Was it?

Sometimes, individuals who post hidden camera videos online do so as a way of disposing of it, odd as that may sound. We checked with the parties, and they agreed that the clip was fairly vanilla gay sex, and that it was only a partial video of what they had been doing. When we asked, they agreed that there were “livelier” activities they had engaged in at the hotel that were not part of the video clip, but that bookended what was depicted. This helped to evolve our working theory that whoever had taken the video had kept the more salacious parts of the video for themselves, and had thrown the boring parts out online. CupKake had some deviant patterns, it seemed.

We pretty quickly confirmed this possibility by checking the website and associated sites. CupKake had posted other video clips, all fairly short, all fairly dull, all from a static, high-angle camera, and all depicting various hotel rooms and named accordingly with titles like secret camera, secret video, hotel room hidden camera, etc. Some of the rooms looked to be the same as the one our parties had occupied in Miami. Fourteen videos in all spread over several host sites. Either one of our parties was a serial revenge porn poster, or we were seeing the patterns of an unknown paraphiliac who was invading hotel rooms with a hidden camera. I leaned toward the latter explanation, as none of the other videos featured either party, and the possibility that the respondent was posting his own anatomy in the video, even if his face was not seen, just didn’t seem to fit with what we knew about him and his stated desire to take this matter to the police. On a hunch, I asked the men if anything had been stolen from their room while they were on vacation. They claimed that nothing was taken, but the complainant contacted me later to say that some underwear had gone missing from the room one afternoon, but that he had convinced himself at the time that he had just under-packed. I told him I suspected that the underwear was stolen. I was more and more convinced of our paraphilia theory for CupKake now.

At the behest of the parties and the college, we took what we learned to the police. We also shared with them our suspicion that a sexual trophy (also commonly called a token) might be in play. CupKake might be an underwear collector. The police checked their records of arrests related to the hotel. Nothing turned up, but the police recognized other local hotels from the videos. They were all in Miami. The police then canvassed the hotels, finding that two had a common employee who was fired around the times in question for pilfering from rooms. We had our paraphiliac. It was not the respondent, but someone who had sought employment in hotels in an area of Miami frequented by gay men, concealed cameras in air vents, captured the video on a nearby computer, and then entered the rooms to obtain a souvenir from those whose sexual privacy he had violated. It took the police less than two weeks to make an arrest, in which they found all of the videos on CupKake’s laptop. I should have sent them a bill for our services! 

*Some facts have been altered to protect the identities of those involved.

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