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From my first year of law school, I read the cases of every federal criminal case in which there was an attempt to introduce evidence at trial about the defendant or victims’ sexual contacts with the defendant/victims.

The results were always predictable. On appeal, many lawyers will claim that their clients did not intend to mislead the court about certain aspects of their case. The fact that this theory is wrong can be very hard to refute when a trial court actually finds the evidence in the case is compelling.

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My law school professors were very strict with the application of this concept. The more they used it, the more it was ingrained with their belief that it was not the defendant who misled the court, but the prosecution.

But a number of recent decisions from the Seventh Circuit Court of Appeals has shown otherwise. Recently, the court has ruled that a defendant’s failure to disclose in a plea agreement a sexually explicit, intimate video depicting oral sex between a defendant and an alleged victim may be considered an admission of guilt and should be deemed to have served as the basis for the agreement that that evidence be admitted at trial.

The Seventh Circuit Court decided that the video did not necessarily reveal consent. Rather, it showed the victim as having had a sexual relationship with an actor of the defendant’s choosing, and the defendant’s refusal to disclose the existence of that relationship in a plea bargain offer. To the court’s understanding, it might be presumed that the defendant intended to lie in the plea bargain, because of his refusal to disclose the relationship.

In a dissent, the court’s majority opinion declared that the plaintiff’s expert testimony regarding the state of his brain when he began to have sex with the defendant was insufficient “to establish that a conscious state of mind existed in the minds of his assailants or that sexual penetration was imminent.”

The court also concluded that the prosecutor improperly urged the jury that a defendant not be called for trial until he made a disclosure in writing that his alleged victims’ sexual relations with him were consensual. The court said the prosecutor’s plea bargain offer was “totally deficient,” and if the jury were to convict,

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