Luster Sex Videos Not Admissible

Defense lawyers will not be allowed to introduce homemade videos of rape suspect Andrew Luster having consensual sex with a former girlfriend when his trial begins next week, a judge ruled Friday.

The decision, which comes just before opening statements Monday, is a blow to Luster’s case. His lawyers argued the tapes were crucial evidence to rebut allegations that he drugged and raped the ex-girlfriend at his Mussel Shoals beach house six years ago.

The defense argues that Luster, the 38-year-old great-grandson of cosmetics magnate Max Factor, was an aspiring porn producer who directed films in which women pretended to be asleep while he had sex with them.

Prosecutors have charged the wealthy bachelor with raping three women at his house after knocking them out with the date-rape drug gamma hydroxybutyrate, or GHB.

One of the women called police after Luster allegedly drugged her at a bar and allegedly raped her in his home. Charges were filed on behalf of two other women after investigators seized tapes from Luster’s home that allegedly depict more sexual assaults. Luster faces multiple counts of rape, sexual battery, sodomy and poisoning.

Defense lawyers have portrayed the purported victims as vengeful ex-lovers and party girls who drank too much and are now embarrassed by their actions. They say the videotapes support that position. But Ventura County Superior Court Judge Ken Riley ruled that the tape excerpts are not relevant.

“The crime charged is not videotaping,” Riley stated in a ruling. “The issue is whether the defendant was engaging in sexual intercourse with a woman he knows to be unconscious.”

Riley referred to a recent Northern California appellate court decision, which Ventura County prosecutors have cited in their efforts to narrow the field of evidence in Luster’s trial.

In September, the 6th District Court of Appeal, ruling in a Santa Clara County case in which a man drugged and raped his estranged girlfriend, found that a person who intentionally has sex with an unconscious victim is committing rape.

The court rejected the concept of “advance” consent, finding that a decision to engage in sex is made at the time of the act. Even if a woman indicates she is willing to engage in unconscious sexual intercourse, a man who then has sex with her while she is unconscious deprives her of the opportunity to withdraw her consent, the court ruled.

Three weeks ago, the California Supreme Court declined to consider the case, which means Luster is stuck with the lower court’s findings.

In a separate ruling, Riley rejected a defense motion to suppress Luster’s statements to detectives after his arrest two years ago.